490. The Trial of Mr. JOHN PETER ZENGER, of New-York, Printer,
for printing and publishing a Libel against the Government;
before the Hon. James de Lancey, esq. Chief Justice of the
Province of New-York; and the Hon. Frederick Phillipse, esq.
second Judge; at New-York, on August 4th: 9 GEORGE II.
A. D. 1735.*
AS there was but one printer in the province
of New York, that printed a public news-paper, I was in hopes, if I undertook to publish
another, I might make it worth my while;
and I soon found my hopes were not groundless.
My first paper was printed, Nov.
5th, 1733, and I continued printing and publishing of them, I thought to the satisfaction of every body, till the January following; when the chief justice was pleased to
animadvert upon the doctrine of libels, in a long
charge given in that term to the grand jury,
and afterwards on the third Tuesday of October, 1734, was again pleased to charge the
grand jury in the following words:
"Gentlemen, I shall conclude with reading
a paragraph or two out of the same book, con* This Trial (or rather part of a trial) published by Mr. Zenger himself, having made a
great noise in the world, is here inserted;
though the doctrines advanced by Mr. Hamilton in his speeches, are not allowed in the
courts here to be law. — See lord Raymond's
opinion in the foregoing Trial, p. 672. — To
which we have subjoined some remarks on this
trial, published soon after it made its first appearance. Former Edition. See also stat.
32 Geo. 3, c. 60, as referred to in a note to
Francklin's Case, ante, p. 672, and the other
parts of that note.
cerning libels; they are arrived to that height,
that they call loudly for your animadversion;
it is high time to put a stop to them; for at the
rate things are now carried on, when all order
and government is endeavoured to be trampled
on, reflections are cast upon persons of all degrees. Must not these things end in sedition,
if not timely prevented? Lenity, you have seen,
will not avail; it becomes you then to enquire
after the offenders, that we may, in a due
course of law, be enabled to punish them. If
you, gentlemen, do not interpose, consider
whether the ill consequences that may arise
from any disturbances of the public peace,
may not in part lie at your door?
"Hawkins, in bis chapter of Libels, considers
three points: 1st, What shall be said to be a
libel. 2dly, Who are liable to be punished for
it. 3dly, In what manner they are to be
punished. Under the 1st, he says, § 7, 'Nor
can there be any doubt, but that a writing,
which defames a private person only, is as
much a libel as that which defames persons intrusted in a public capacity, in as much as it
manifestly tends to create ill blood, and to cause
a disturbance of the public peace; however, it
is certain, that it is a very high aggravation
of a libel, that it tends to scandalize the government, by reflecting on those who are entrusted with, the administration of public affairs, which does not only endanger the public
peace, as all other libels do, by stirring; up the
parties immediately concerned in it, to acts of
revenge, but also has a direct tendency to
breed in the people a dislike of their governors
and incline them to faction and sedition.' As
to the 2d point he says, § 10, ' It is certain,
not only he who composes or procures another to compose it, but also that he who publishes, or procures another to publish it, are in
danger of being punished for it; and it is said
not to be material, whether he who disperses a
libel, knew any thing of the contents or effects
of it or not; for nothing could be more easy
than to publish the most virulent papers with
the greatest security, if the concealing the
purport of them from an illiterate publisher
would make him safe in the dispersing
them. Also it has been said, that if he w h o
hath either read a libel himself, or hath heard
it read by another, do afterwards maliciously
read or report any part of it in the presence,
of others, or lend or shew it to another, he is
guilty of an unlawful publication of it. Also,
it hath been holden, that the copying of a
libel libel be a conclusive evidence of the publication of it, unless the party can prove that
he delivered it to a magistrate to examine it,
in which case the act subsequent is said to
explain the intention precedent. But it seems
to be the better opinion, that he who first
writes a libel, dictated by another, is thereby
guilty of making of it, and consequently
punishable for the bare writing; for it was
no libel till it was reduced to writing.'
"These, gentlemen, are some of the offences
which are to make part of your enquiries;
and if any other should arise is the course of
your proceedings, in which you are at a loss,
or conceive any doubts, upon your application
here, we will assist and direct you."
The grand jury not indicting me as was expected, the gentlemen of the Council proceeded
to take my Journals into consideration, and sent
the following Message to the General Assembly :
"Die Jons, 3 p. M. 17th of October, 1734.
"A Message from the Council by Philip
Cortlandt, in these words, to wit: 'That board
having had several of Zenger's New York
Weekly Journals laid before them, and other
scurrilous papers, tending to alienate the affections of the people of this province from
his majesty's government, to raise seditions
and tumults among the people of this province, and to fill their minds with a contempt
of his majesty's government: And considering the pernicious consequences that may attend such growing evils, if not speedily and
effectually put a stop to: And conceiving that
the most likely method to put a stop to such
bold and seditious practices, to maintain the
dignity of his majesty's government, and to
preserve the peace thereof, would be by a conference between a Committee of this board,
and a Committee of the Assembly; it is there-
fore ordered, that the gentlemen of this board,
now assembled, or any seven of them, be a
committee, to join a committee of the House
of Representatives, in order to confer together,
and to examine and enquire into the said
papers, and the authors and writers thereof.'
"Which Message being read,
"Ordered, That the members of this House,
or any fourteen of them, do meet a Committee
of the Council, at the time and place therein
mentioned.
"Die Veneris, 9 A. M. 18 October, 1734.
"Mr. Garretson, from the Committee of this
House, reported, That they last night met the
Committee of the Council, on the subject-matter
of their Message of yesterday to this House; and
that after several preliminaries between the said
Committees, the gentlemen of the Council reduced to writing, what they requested of this
House, and delivered the same to the chairman,
who delivered it in at the table, and being read,
is in the words following :
" ' A t a Committee of the Council held the
'17th of October, 1734: PRESENT; Mr.
Clarke, Mr. Harrison, Dr. Colden, Mr.
Livingston, Mr. Kennedy, Mr. Chief
Justice, Mr. Cortlandt, Mr. Lane, Mr.
Horsmanden.
" 'Gentlemen; The matters we request
your concurrence in are, That Zenger's papers, No. 7, 47, 48, 49, which were read, and
which we now deliver, be burnt by the hands
of the common hangman, as containing in
them many things derogatory of the dignity
of his majesty's government, reflecting upon
the legislature, upon the most considerable
persons in the most distinguished stations in
the province, and tending to raise seditions
and tumults among the people thereof.
" 'That you concur with us in the addressing the governor, to issue his proclamation,
with a promise of reward for the discovery of
the authors or writers of these seditious libels.
" 'That you concur with us in an Order for
prosecuting the printer thereof.
" 'That you concur with us in an Order to
the magistrates, to exert themselves in the
execution of their offices, in order to preserve
the public peace of the province. By order
of the Committee,
" 'FRED. MORRIS, Cl. Con.'
"Mr. Garretson delivered likewise to the
House the several papers referred to in the said
request.
"Ordered, That the said papers be lodged
with the clerk of this House; and that the
consideration thereof, and the said request, be
referred till Tuesday next.
"Die Martis, 9 A. M. 22 October, 1734.
"The House according to Order proceeded
to take into consideration the request of a Committee of Council, delivered to a Committee of
this House, on the 16th instant, as likewise of
the several papers therein referred to. And
after several debates upon the subject-matters,
it was ordered, That the said papers and requests lie on the table."
The Council finding the General Assembly
would not do any thing about it, they sent the
following Message to the House:
"Die Sabbati, 9 A. M. 2 November, 1734.
"A Message from the Council by Mr. Livingston, desiring this House to return by him
to that board the several seditious Journals of
Zenger's, No. 7, 47, 48, 49, which were delivered by a Committee of that Board to a Committee of this House the 17th of October last,
together with the proposals of the Committee
of that Board, delivered therewith to a Committee of this House; and then withdrew."
On Tuesday the 5th of November, 1734, the
quarter-sessions for the city of New York began, when the sheriff delivered to the Court an
Order, which was read in these words:
"At a Council held at Fort George, in New
York, the 2d of November, 1734: PRESENT; His Excellency William Cosby,
Captain General and Governor in Chief,
&c. Mr. Clarke, Mr. Harrison, Dr. Colden,* Mr. Livingston, Mr. Kennedy, Mr.
Chief Justice, Mr. Cortlandt, Mr. Lane,
Mr. Horsmanden.
"Whereas by an Order of this Board, of this
day, some of John Peter Zenger's Journals,
entitled, ' The New York Weekly Journal,
containing the freshest Advices, foreign and
domestic,' No. 7, 47, 48, 49, were ordered to
be burnt by the hands of the common hangman, or whipper, near the pillory in this city,
on Wednesday the 6th instant, between the
hours of eleven and twelve in the forenoon, as
containing in them many things tending to sedition and faction, to bring his majesty's government into contempt, and to disturb the
peace thereof, and containing in them likewise
not only refections upon his excellency the governor in particular, the legislature in general,
tut also upon the most considerable persons in
the most distinguished stations in this province:
it is therefore ordered, That the mayor and
magistrates of this city do attend at the burning
of the several Papers or Journals aforesaid,
numbered as above mentioned.
"FRED. MORRIS, D. Cl. Con."
"To Robert Lurling, esq. mayor of the
city of New York, and the rest of the
magistrates for the said city and
county."
"Upon reading of which Order, the Court
forbad the entering thereof in their books at
that time; and many of them declared, that if
* "N. B. Dr. Colden was that day at
Esopus, 90 miles from New York, though mentioned as present in council." — Former Edition.
it should be entered, they would have their
protest entered against it.
On Wednesday the 6th of November, the
sheriff of New York moved the Court of Quarter-sessions to comply with the said Order;
upon which one of the aldermen offered a Protest, which was read by the clerk, and approved
of by all the aldermen, either expressly or by
not objecting to it, and is as followeth:
"Whereas an Order has been served on this
Court, in these words." [The Order as above
inserted.] "And whereas this Court conceives,
they are only to be commanded by the king's
mandatory writs, authorised by law, to which
they conceive they have the right of shewing
cause why they don't obey them, if they believe
them improper to be obeyed; or by Orders,which
have some known laws to authorise them; and
whereas this Court conceives this Order to be
no mandatory writ warranted by law, nor
knows of no law that authorises the making the
Order aforesaid; so they think themselves
under no obligation to obey it: which obedience, they think would be in them, an opening
a door for arbitrary commands, which, when
once opened, they know not what dangerous
consequences may attend it. Wherefore this
Court conceives itself bound in duty (for the
preservation of the rights of this corporation,
and, as much as they can, the liberty of the
press, and the people of the province, since an
assembly of the province, and several grand
juries, have refused to meddle with the papers,
when applied to by the Council) to protest
against the Order aforesaid, and to forbid all
the members of this corporation to pay any
obedience to it, until it be shewn to this Court,
that the same is authorised by some known
law, which they neither know, nor believe that
it is."
Upon reading of which, it was required of
the honourable Francis Harrison, recorder of
this corporation, and one of the members of the
Council, (present at making the said Order) to
shew by what law or authority the said Order
was made; upon which he spoke in support of
it, and cited the case of Dr. Sacheverell's Sermon, which was by the House of Lords ordered
to be burnt by the hands of the hangman, and
that the mayor and aldermen of London should
attend the doing of it. To which one of the aldermen answered to this purpose: That he
conceived the case was no ways parallel, because Dr. Sacheverell and his Sermon were
impeached by the House of Commons of England, which is the grand jury of the nation,
and representative of the whole people of England : that this their impeachment they prosecuted before the House of Lords, the greatest
court of justice of Britain, and which, beyond
memory of man, has had cognizance of things
of that nature: that there Sacheverell had a
fair hearing in defence of himself and of his
Sermon; and after that fair hearing, he and
his Sermon were justly, fairly, and legally
condemned: that be had read the case of Dr.
Sacheverell, and thought he could charge his
memory, that the judgment of the House of
Lords in that case was, That the mayor and
sheriffs of London and Middlesex only should
attend the burning of the Sermon, and not the
aldermen; and farther he remembered, that the
Order upon that judgment was only directed to
the sheriffs of London, and not even to the
mayor, who did not attend the doing it: and
farther said, that would Mr. Recorder shew,
that the governor and council had such authority as the House of Lords, and that the papers
ordered to be burnt were in like manner legally
prosecuted and condemned, there the case of
Dr. Sacheverell might be to the purpose; but
without shewing that, it rather proved that a
censure ought not to be pronounced, till a fair
trial by a competent and legal authority were
first had. Mr. Recorder was desired to produce the books from whence he cited his authorities, that the Court might judge of them
themselves, and was told, that if he could produce sufficient authorities to warrant this Order, they would readily obey it, but otherwise
not. Upon which he said, he did not carry his
books about with him. To which it was answered, he might send for them, or order a
constable to fetch them. Upon which he
arose, and at the lower end of the table he mentioned, that bishop Bumet's Pastoral Letter was
ordered, by the House of Lords, to be burnt* by
the high bailiff of Westminster; upon which
he abruptly went away, without waiting for an
answer, or promising to bring his books, and
did not return sitting the Court.
After Mr. Recorder's departure, it was
moved, that the Protest should be entered; to
which it was answered, that the Protest could
not be entered, without entering also the
Order, that it was not fit to take any notice of
it; and therefore it was proposed that no notice should be taken in their books of either,
which was unanimously agreed to by the
Court.
The sheriff then moved, that the Court would
direct their whipper to perform the said Order; to which it was answered, That as he
was the officer of the corporation, they would
give no such Order. Soon after which the
Court adjourned, and did not attend the burning of the papers. Afterwards about noon,
the sheriff, after reading the numbers of the
several papers which were ordered to be burnt,
delivered them unto the hands of his own negro,
and ordered him to put them into the fire,
which he did; at which Mr. Recorder, Jeremiah Dunbar, esq. and several of the officers of the garrison, attended.
On the Lord's day, the 17th of November,
* Bishop Kennet says, that this Letter
seemed to be sacrificed to a poor jest on the
author's name [Burnet]. Complete Hist. of
Eng. vol. 3, p. 587, 2 Ed. in Lond, 1719. —
Former Edition.
1734, I was taken and imprisoned by virtue of
a warrant in these words :
"At a Council held at Fort George in New
York, the 2d day of November, 1734.
PRESENT; bis Excellency William Cosby,
Captain General and Governor in Chief,
&c. Mr. Clarke, Mr. Harrison, Mr.
Livingston, Mr. Kennedy, Chief-Justice,
Mr. Cortlandt, Mr. Lane, Mr. Horsmanden,
"It is ordered, that the sheriff for the city
of New York do forthwith take and apprehend John Peter Zenger, for printing and
publishing several seditious libels, dispersed
throughout his Journals or News-papers, intituled, ' The New York Weekly Journal, containing the freshest advices, foreign and domestic;' as having in them many things tending to raise factions and tumults among the
people of this province, inflaming their minds
with contempt of his majesty's government,
and greatly disturbing the peace thereof; and
upon his taking the said John Peter Zenger, to
commit him to the prison or common jail of
the said city and county.
"FRED. MORRIS, D. Cl. Con."
And being, by virtue of that warrant, so imprisoned in the jail, I was for several days denied the use of pen, ink, and paper, and the liberty of speech with any persons. — Upon my
commitment, some friends soon got a Habeas
Corpus to bring me before the chief-justice, in
order to my discharge, or being bailed; on the
return whereof, on Wednesday the 20th of November, my counsel delivered exceptions to
the return, and the chief-justice ordered them
to be argued publicly at the city hall, on the
Saturday following.
On Saturday the 23d of November, the said
exceptions came to be argued, by James
Alexander and William Smith, of counsel for
me, and by Mr. Attorney General, and Mr.
Warrel, of counsel against me, in presence of
some hundreds of the inhabitants; where my
counsel (saving the benefit of exception to the
illegality of the warrant) insisted that I might
be admitted to reasonable bail. And to shew
that it was my right to be so, they offered
Magna Charta, the Petition of Right, 3 Car.
the Habeas Corpus Act of 31 Car. 2. which directs the sum, in which bail is to be taken, to
be, 'according to the quality of the prisoner,
and nature of the offence.' Also 2 Hawkins,
cap. 15, §. 5, in these words, 'But justices must
take care, that, under pretence of demanding
sufficient security, they do not make so excessive a demand as, in effect, amounts to a denial
of bail; for this is looked on as a great grievance, and is complained of as such, by 1 W. &
M. sess. 2, by which it is declared, 'That excessive bail ought not to be required,' It was
also shewn, that the Seven Bishops, who, in
king James the 2d's time, were charged with
the like crime that I stood charged with, were
admitted to bail on their own recognizances,
the archbishop in 200l. and each of the other
six in 100l a-piece only. Sundry other authorities and arguments were produced and insisted on by my counsel, to prove my right to
be admitted to moderate bail, and to such bail
as was in my power to give; and sundry parts
of history they produced, to shew how much
the requiring excessive bail had been reseated
by parliament. And, in order to enable the
Court to judge what surety was in my power to
give, I made affidavit, That (my debts paid)
I was not worth forty pounds, (the tools of my
trade, and wearing-apparel excepted.)
Some warm expressions (to say no worse of
them) were dropt on this, occasion, sufficiently
known and resented by the auditory, which,
for my part, I desire may be buried in oblivion : upon the whole, it was ordered, that I
might be admitted to bail, myself in 400l. with
two sureties, each in 200l. and that I should
be remanded till I gave it. And as this was ten
times more than was in my power to countersecure any person in giving bail for me, I conceived I could not ask any to become my bail
on these terms; and therefore I returned to
jail, where I lay until Tuesday the 28th of January, 1734-5, bring the last day of that term;
and the grand jury having found nothing
against me, I expected to have been discharged
from my imprisonment: but my hopes proved
Tain; for the Attorney General then charged
me, by information, for printing and publishing
parts of my Journals No. 13 and 23, as being
false, scandalous, malicious, and seditious.
To this information my Counsel appeared,
and offered Exceptions, leaving a blank for inserting the judges commissions, which the
Court were of opinion not to receive till those
blanks were filled up. In the succeeding vacation the judges gave copies of their commissions; and on Tuesday the 15th of April last,
the first day of the succeeding term, my
Counsel offered these Exceptions; which were
as follow:
"The ATTORNEY GENERAL, v. JOHN PETER
ZENGER. — On Information for a Misdemeanor.
"Exceptions humbly offered by John Peter
Zenger, to the honourable James de Lancey,
esq. to judge in this cause.
"The defendant comes and prays hearing
of the commission, by virtue of which the honourable James de Lancey, esq. claims the
power and authority to judge in this cause, and
it is read to him in these words:
"'George the 2d, by the grace of God,
of Great Britain, France and Ireland, king,
defender of the faith, &c. To our trusty
and well beloved James de Lancey, esq.
We, reposing special trust and confidence in
your integrity, ability and learning, have
assigned, constituted and appointed, and we
do by these presents assign, constitute, and
appoint you, the said James de Lancey, to
be chief justice in and over our province of
New York, in America, in the room of Lewis
Morris, esq. giving and by these presents
granting unto you full power and lawful authority to hear, try, and determine all pleas
whatsoever, civil, criminal, and mixt, according to the laws, statutes, and customs of our
kingdom of England, and the laws and usages
of our said province of New York, not being
repugnant thereto, and executions of all judgments of the said court to award, and to make
such rules and orders in the said court, as may
be found convenient and useful, and, as near
as may be, agreeable to the rules and orders
of our courts of King's-bench, Common
Pleas, and Exchequer in England. To have,
hold, and enjoy the said office or place of chief
justice in and over our said province, with all
and singular the rights, privileges, profits and
advantages, salaries, fees and perquisites unto
the said place belonging, or in any ways appertaining, in as full and ample manner as
any person heretofore chief justice of our said
province hath held and enjoyed, or of right
ought to have held and enjoyed the same, to
you the said James De Lancey, esq. for and
during our will and pleasure. In testimony
whereof we have caused these our letters to
be made patent, and the. great seal of our
province of New York to be hereunto affixed.
Witness our trusty and well-beloved William
Cosby, esq. our captain-general and governor
in chief of our provinces of New York, New
Jersey, and the territories thereon depending
in America, vice-admiral of the same, and
colonel in our army, at Fort George in New
York, the 21st day of August, in the 7th year
of our reign, Anno Domini, 1733.'
"Which being read and heard, the said John
Peter Zenger, by protestation not confessing
nor submitting to the power of any other person to judge in this cause, doth except to the
power of the honourable James de Lancey,
esq. aforesaid, to judge in this cause, by virtue
of the commission aforesaid, for these reasons,
viz.
"1st. For that the authority of a judge of
the King's-bench, in that part of Great Britain
called England, by which the cognizance of
this cause is claimed, is by the said commission
granted to the honourable James de Lancey,
esq. aforesaid, only during pleasure; whereas
that authority (by a statute in that case made
and provided) ought to be granted during good
behaviour.
"2nd. For that, by the said commission, the
jurisdiction and authority of a justice of the
court of Common Pleas at Westminster, in that
part of Great Britain called England, is granted
to the said James de Lancey, esq. which jurisdiction and authority cannot be granted to, and
exercised by, any one of the justices of the
King's-beneh.
"3rd. For that the form of the said commission is not founded on, nor warranted by the
common law, nor any statute of England, nor
of Great Britain, nor any act of assembly of
this colony.
"4th. For that it appears, by the commis-
sion aforesaid, that the same is granted under
the sea! of this colony by his excellency William Cosby, esq. governor thereof; and it appears not, that the same was granted, neither
was the same granted, by and with the advice
and consent of his majesty's council of this
colony; without which advice and consent, his
excellency could not grant the same.
"Wherefore, and for many other defects in
the said commission, this defendant humbly
hopes, that the honourable James de Lancey,
esq. will not take cognizance of this cause, by
virtue of the commission aforesaid.
"JAMES ALEXANDER.
"WILLIAM SMITH."
The Exceptions to the Commission of the
honourable Frederick Phillipse, esq. were the
same with the foregoing, including therein his
commission, which is in these words:
'George the 2d, by the grace of God, of
Great Britain, France and Ireland, king, defender of the faith, &c. To our trusty and
well-beloved Frederick Phillipse, esq. greeting : whereas it is our care, that justice be
duly administered to our subjects within our
province of New York, and territories thereon
depending in America; and we, reposing
especial confidence in your integrity, ability
and learning, have assigned, constituted and
appointed, and we do by these presents assign, constitute and appoint you, the said
Frederick Phillipse, to be second justice of
our supreme court of judicature for our province of New York, in the room of James de
Lancey, esq. giving and granting to you, the
said Frederick Phillipse, full power and authority, with our other justices of our said
supreme court, to hear, try, and determine all
pleas whatsoever, civil, criminal, and mixed,
according to the laws, statutes and customs
of our kingdom of England, and the laws and
usages of our said province of New York, not
being repugnant thereto; and executions of all
judgments of the said court to award, and to act
and do all things, which any of our justices of
either bench, or barons of the Exchequer, in
our said kingdom of England, may or ought
to do, and also to assist in the making such
rules and orders in our said court, as shall be
for the good and benefit of our said province;
and, as near as conveniently may be, to the
rules and orders of our said courts in our said
kingdom of England: to have, hold, and enjoy the said office or place of second justice of
our said province of New York, together with
all and singular the rights, privileges, salaries,
fees, perquisites, profits and advantages thereto, now or at any time heretofore belonging,
or in any wise of right appertaining, unto you,
the said Frederick Phillipse, for and during
our pleasure. In testimony whereof, we have
caused these our letters to be made patent, and
the great seal of our said province of New York
to be hereunto affixed. Witness our trusty
and well-beloved William Cosby, esq. our
captain general and governor in chief of our
provinces of New York, New Jersey, and
territories thereon depending in America,
vice-admiral of the same, and colonel in our
army, &c. at Fort George in New York, the
21st day of August, in the 7th year of our
reign, Anno Domini, 1733.
'FRED. MORRIS, D. Secretary.'
Tuesday, April 15, 1735.
Mr. Alexander offered the above Exceptions
to the Court, and prayed that they might be
filed. Upon this the chief justice said to Mr.
Alexander and Mr. Smith, that they ought
well to consider the consequences of what they
offered. To which both answered, that they
had well considered what they offered, and all
the consequences. And Mr. Smith added, that
he was so well satisfied of the right of the subject to take an exception to the commission of
a judge, if he thought such commission illegal, — that he durst venture his life upon that
point. As to the validity of the Exceptions
then offered, he said, he took that to be a second point; but was ready to argue them both,
if their honours were pleased to hear him. To
which the chief justice replied, that he would
consider the Exceptions in the morning; and
ordered the clerk to bring them to him.
Wednesday, April 16.
The chief justice delivered one of the Exceptions to the clerk, and justice Phillipse the
other; upon which Mr Smith arose, and asked the judges, whether their honours would
hear him upon these two points. 1st. That
the subject has a right to take such Exceptions,
if they judged the commission illegal. 2dly.
That the Exceptions tendered were legal and
valid. To which the chief justice said, that
they would neither hear nor allow the Exceptions; for (said he) you thought to have gained a great deal of applause and popularity by
opposing this court, as you did the court of
Exchequer; but you have brought it to that
point, that either we must go from the bench,
or you from the bar: therefore we exclude you
and Mr. Alexander from the bar; and delivered a paper to the clerk, and ordered it to be
entered; which the clerk entered accordingly,
and returned the paper to the chief justice;
after which the chief justice ordered the clerk
to read publicly what he had written; an attested copy whereof follows:
"At a Supreme Court of Judicature held for the
Province of New York, at the City-Hall
of the City of New York, on Wednesday
the 16th day of April, 1735. PRESENT;
the Hon. James de Lancey, esq. chief
justice. The Hon. Frederick Phillipse,
esq. second justice.
"James Alexander, esq. and William Smith,
attornies of this Court, having presumed, (notwithstanding they were forewarned by the
Court of their displeasure, if they should do it)
to sign, and having actually signed, and put
into court. Exceptions, in the name of John
Peter Zenger; thereby denying the legality
of the judges their commissions; though in
the usual form, and the being of this Supreme
Court. It is therefore ordered, that, for the
said contempt, the said James Alexander, and
William Smith, be excluded from any farther
practice in this Court; and that their names
be struck out of the roll of attornies of this
Court.
Per Cur'.
JAMES LYNE, Cl."
After the order of the Court was read, Mr.
Alexander asked, whether it was the order of
Mr. Justice Phillipse as well as of the chiefjustice? To which both answered, that it was
their order; upon which Mr. Alexander added.
That it was proper to ask that question, that
they might know how to have their relief:
he farther observed to the Court, upon reading
of the Order, that they were mistaken in their
wording of it, because the Exceptions were
only to their commissions, and not to the being
of the Court, as is therein alleged; and prayed
that the Order might be altered accordingly.
The chief-justice said, they conceived the Exceptions were against the being of the Court.
Both Mr. Alexander and Mr. Smith denied
that they were, and prayed the chief-justice
to point to the place that contained such exceptions; and further added, that the Court might
well exist, though the commissions of all the
judges were void; which the chief-justice confessed to be true: and therefore they prayed
again, that the Order in that point might be
altered; but it was denied.
Then Mr. Alexander desired to know, whether they over-ruled or rejected the Exceptions? The chief-justice said, He did not understand the difference; to which said Alexander replied, that if he rejected the Exceptions, then they could not appear upon the
proceedings, and in that case the defendant
was entitled to have them made part of the
proceedings by bills of exceptions : but if they
over-ruled them, then, by so doing, they only
declared them, not sufficient, to hinder them
from proceeding by virtue of those commissions; and the Exceptions would remain as
records of the Court, and ought to be entered
on the record of the cause, as part of the proceedings. The chief-justice said, They must
remain upon the file, to warrant what we have
done: as to being part of the record of the
proceedings in that cause, he said, You may
speak to that point to-morrow.
Friday, April 18th, 1735.
Mr. Alexander signified to the Court, that
on Wednesday last their honours had said,
that the counsel for Mr. Zenger might speak
to the point, concerning the rejecting or overruling of Mr. Zenger's Exceptions, on the
. morrow: to which the chief-justice answered,
that he said, You may get some person to
speak to that point on the morrow, not meaning that the said Alexander should speak to it,
that being contrary to the Order. Both Mr.
Alexander and Mr. Smith said, they understood it otherwise.
They both also mentioned, that it was a
doubt, whether by the words of the Order, they
were debarred of their practice as counsel, as
well as attornies, whereas they practised in
both capacities. To which the chief-justice
answered, That the Order was plain, "That
James Alexander, esq. and William Smith,
were debarred and excluded from their whole
practice at this bar; and that the Order was intended to bar their acting both as counsel and
as attornies, and that it could not be construed
otherwise." And it being asked Mr. Phillipse,
whether he understood the Order so? He answered, That he did.
Upon this exclusion of my counsel, I petitioned the Court to order counsel for my defence; who thereon appointed John Chambers, esq. who pleaded Not Guilty for me to
the information. But as to the point, whether
my Exceptions should be part of the record, as
was moved by my former counsel, Mr. Chambers thought not proper to speak to it. Mr.
Chambers also moved, that a certain day in
the next term might be appointed for my trial,
and for a Struck Jury; whereupon my trial
was ordered to be on Monday the 4th of August, and the Court would consider till the
first day of next term, whether I should have
a struck jury or not; and ordered, that the
sheriff should, in the mean time, at my charge,
return the freeholders book.
At a Supreme Court of Judicature held for the
Province of New York, before the honourable James De Lancey, esq. ChiefJustice of the said Province; and the honourable Frederick Phillipse, esq. second Justice of the said Province.
On Tuesday the 29th of July, 1735, the
Court opened; and on motion of Mr. Chambers
for a Struck Jury, pursuant to the rule of the
preceding term, the Court were of opinion,
that I was entitled to have a Struck Jury;
and that evening, at five of the clock, some
of my friends attended the clerk, for striking
the jury; when, to their surprize, the clerk,
instead of producing the freeholders book, to
strike the jury out of it in their presence, as
usual, he produced a list of 48 persons, whom,
he said, he had taken out of the freeholders
book: my friends told him, that a great number
of these persons were not freeholders; that
others were persons holding commissions and
offices at the governor's pleasure; that others
were of the late displaced magistrates of this
city, who must be supposed to have resentment
against me, for what I had printed concerning
them; that others were the governor's baker,
taylor, shoe-maker, candle-maker, joiner, &c.
that as to the few indifferent men that were
upon that list, they had reason to believe (as
they had heard) that Mr. Attorney had a list
of them to strike them out; and therefore requested, that be would either bring the freeholders book, and chuse out of it 48 unex-
ceptionable men in their presence, as usual;
or else, that he would hear their objections,
particularly to the list he offered; and that be
would put impartial men in the place of those
against whom they could shew just objections.
Notwithstanding this, the clerk refused to
strike the jury out of the freeholders book,
and refused to hear any objections to the persons on his list; but told my friends, if any
objections they had to any persons, they might
strike those persons out; to which they answered, There would not remain a jury, if
they struck out all the exceptionable men;
and, according to the custom, they had only a
right to strike out 12.
But finding no arguments could prevail with
the clerk to hear their objections to his list,
nor to strike the jury as usual, Mr. Chambers
told him, he must apply to the Court, which
the next morning he did; and the Court, upon
his motion, ordered, That the 48 should be
struck out of the freeholders book, as usual,
in the presence of the parties; and that the
clerk should hear objections to persons proposed to be of the 48, and allow of such exceptions as were just. In pursuance of that
order, a jury was that evening struck, to the
satisfaction of both parties, though my friends
and counsel insisted on no objections but want
of freeholders; and though they did not insist,
that Mr. Attorney General (who was assisted
by Mr. Blagge) should shew any particular
cause, against any persons he disliked, but acquiesced that any person he disliked should be
out of the 48.
Before James De Lancey. esq. Chiefjustice of the province of New York, and Frederick Phillipse, second judge, came on my
trial, "on the fourth day of August, 1735,
upon an information for printing and publishing two news-papers, which were called
libels against our governor and his administration.
The defendant John Peter Zenger, being
called, appeared.
And the sheriff returned his Venire for the
trial of this said cause.
Mr. Chambers, of counsel for the defendant.
I humbly move your honours, that we may
have justice done by the sheriff, and that he
may return the names of the jurors in the same
order as they were struck.
Mr. Chief Justice. How is that? Are they
not so returned?
Mr. Chambers. No, they are not; for some
of the names that were last set down in the
pannel, are now placed first.
Mr. Chief Justice. Make out that, and you
shall be righted.
Mr. Chambers. I have the copy of the pannel
in my hand, as the jurors were struck; and if
the clerk will produce the original, signed by
Mr. Attorney and myself, your honour will see
our complaint is just.
Mr. Chief-Justice. Clerk, is it so? Look
upon that copy; is it a true copy of the pannel
as it was struck?
Clerk. Yes, I believe it is.
Mr. Chief Justice. How came the names of
the jurors to be misplaced in the pannel annexed to the Venire?
Sheriff. I have returned the jurors in the
same order In which the clerk gave them
to me.
Mr. Chief-Justice. Let the names of the
jurors be ranged in the order they were struck,
agreeable to the copy here in court.
Which was done accordingly. And the
jury, whose names were as follow, were called
and sworn:
JURY.
Hermanus Rutgers,
Egbert Van Borson,
Stanley Holmes,
Tho. Hunt, Foreman,
Edward Man,
Benjamin Hildreth,
John Bell,
Abraham Keteltas,
John Goelet,
Samuel Weaver,
Hercules Wendover.
Andries Marsehalk,
Mr. Attorney General opened the information, which was as follows:
Att. Gen. May it please your honours, and
you gentlemen of the jury; the information
now before the Court, and to which the defendant Zenger, has pleaded Not Guilty, is an information for printing and publishing a false,
scandalous, and seditious libel, in which his
excellency, the governor of this province, who
is the king's immediate representative here, is
greatly and unjustly scandalized, as a person
that has no regard to law nor justice; with much
more, as will appear upon reading the informations. This [practice] of libelling is what has always been discouraged, as a thing that tends to
create differences among men, ill blood among
the people, and oftentimes great bloodshed between the party libelling and the party libelled.
There can be no doubt but you, gentlemen
of the jury, will have the same ill opinion of
such practices as the judges have always
shewn upon such occasions: But i shall say
no more at this time, until you hear the information, which is as follows:
"New-York, Supreme Court.
"Of the Term of January, in the eighth year of
the reign of our Sovereign Lord King
George the Second, &c.
"New York, ss. Be it remembered, that
Richard Bradley, esq. Attorney General of our
sovereign lord the king for the province of NewYork, who for our said lord the king in this
part prosecutes, in his own proper person
comes here into the Court of our said lord the
king, and for our said lord the king gives the
Court here to understand, and be informed,
that John Peter Zenger, late of the city of
New-York, printer, (being a seditious person,
and a frequent printer and publisher of false
news and seditious libels, and wickedly and
maliciously devising the government of our
said lord the king of this his majesty's province
of New-York, under the administration of his
excellency William Cosby, esq. captain-general
and governor in chief of the said province, to
traduce, scandalize and vilify, and his excellency the said governor, and the ministers and
officers of our said lord the king, of and for the
said province, to bring into suspicion, and the
ill opinion of the subjects of our said lord the
king residing within the said province) the 28th
day of January in the 7th year of the reign of
our sovereign lord George the Second, by the
grace of God, of Great Britain, France and
Ireland, king, defender of the faith, &c. at
the city of New-York, did falsely, seditiously
and scandalously print and publish, and cause
to be printed and published a certain false, malicious, seditious, scandalous libel, intituled,
'The New-York Weekly Journal, containing
the freshest advices, foreign and domestic;' in
which libel (of and concerning his excellency
the said governor, and the ministers and officers of our said lord the king, of and for the
said province) among other things therein contained are the words, ' Y o u r appearance in
print, at last, gives a pleasure to many,
though most wish you bad come fairly into
the open field, and not appeared behind retrenchments made of the supposed laws
against libelling, and of what other men have
said and done before: These retrenchments,
gentlemen, may soon be shewn 1o you, and
all men, to be weak, and to have neither law
nor reason for their foundation, so cannot long
stand you in stead: Therefore, you had much
better as yet leave them, and come to what
the people of this city and province [the city
and province of New-York meaning] think
are the points in question; (to wit) they
[the people of the city and province of NewYork meaning] think, as matters now stand,
that their liberties and properties are precarious, and that slavery is like to be intailed on them and their posterity, if some
past things be not amended; and this
they collect from many past proceedings.'
[Meaning many the past proceedings of his.
excellency the said governor, and of the ministers and officers of our said lord the king, of
and for the said province.] And the said attorney General of our said lord the king, for our
said lord the king, likewise gives the Court
here to understand, and be informed, that the
said John Peter Zenger afterwards, (to wit) the
Bill day of April, in the 7th year of the reign
of our said lord the king, at the city of New
York aforesaid, did falsely, seditiously, and
scandalously print and publish, and cause to be
printed and published, another false, malicious,
seditious and scandalous libel, entitled, 'The
New York Weekly Journal, containing the
freshest Advices foreign and domestic.' In
which libel, [of and concerning the government
of the said province of New York, and of and
concerning his excellency the said governor,
and the ministers and officers of our said lord
the king, of and for the said province] among
other things therein contained are these words,
'One of our neighbours [one of the inhabitants
of New Jersey meaning] being in company,
observing the strangers [some of the inhabitants of New York meaning] full of complaints, endeavoured to persuade them to remove into Jersey; to which it was replied,
That would be leaping out of the frying-pan
into the fire : for, says he, we both are under
the same governor [his excellency the said
governor meaning] and your Assembly have
shewn with a witness what is to be expected
from them; one that was then moving to
Pensylvania, [meaning one that was then
removing from New York with intent to reside at Pensylvania] to which place it is reported several considerable men are removing
[from New York meaning] expressed in terms
very moving, much concern for the circumstances of New York [the bad circumstances
of the province and the people of New York
meaning] seemed to think them very much
owing to the influence that some men [whom
he called tools] had in the administration
[meaning the administration of government
of the said province of New York] said he was
now going from them, and was not to be hurt
by any measures they should take, but could
not help having some concern for the welfare
of his countrymen, and should be glad to bear
that the Assembly [meaning the General Assembly of the province of New York] would
exert themselves as became them, by shewing that they have the interest of their country more at heart, than the gratification of any
private view of any of their members, or being
at all affected by the smiles or frowns of a governor, [his excellency, the said governor,
meaning] both which ought equally to be despised, when the interest of their country is at
stake. You, says he, complain of the lawyers, but I think the law itself is at an end.
We [the people of the province of New York
meaning] see men's deeds destroyed, judges
arbitrarily displaced, new courts erected, without consent of the legislature [within the province of New York meaning] by which it
seems to me, trials by juries are taken away
when a governor pleases, [his excellency the
said governor meaning] men of known estates denied their votes, contrary to the received practice, the best expositor of any law:
Who is then in that province [meaning the
province of New York] that call [can call
meaning] any thing his own, or enjoy any
liberty [liberty meaning] longer than those in
the administration [meaning the administration of government of the said province of
New York] will condescend to let them do it,
for which reason I have left it [the province
of New York meaning] as I believe more
will;' to the great disturbance of the peace of
the said province of New York, to the great
scandal of our said lord the king, of his excellency the said governor, and of all others
concerned in the administration of the government of the said province, and against the
peace of our sovereign lord the king, his
crown and dignity, &c. Whereupon the said
Attorney General of our said lord the king, for
our said lord the king, prays the advisement of
the Court here, in the premises, and the due
process of the law, against him the said John
Peter Zenger, in this part to be done, to answer
to our said lord the king of and in the premises,
&c.
R. BRADLEY, Attorney General."
To this information the defendant has pleaded Not Guilty, and we are ready to prove it.
Mr. Chambers has not been pleased to favour
me with his notes, so I cannot, for fear of doing him injustice, pretend to set down his argument; but here Mr. Chambers set forth very
clearly, "The nature of a libel, the great allowances that ought to be made for what men
speak or write; that in all libels there must be
some particular persons so clearly pointed out
that no doubt must remain about who is meant;
that he was in hopes Mr. Attorney would fail
in his proof, as to this point; and therefore desired that he would go on to examine his witnesses."
Then Mr. Hamilton, who at the request of
some of my friends, was so kind as to come
from Philadelphia, to assist me on the trial,
spoke:
Mr. Hamilton. May it please your honour:
I am concerned in this cause on the part of
Mr. Zenger, the defendant. The information
against my client was sent me, a few days before I left home, with some instructions to let
me know how far I might rely upon the truth
of those parts of the papers set forth in the information, and which are said to be libellous.
And though I am perfectly of the opinion w i t h
the gentleman who has just now spoke, on the
same side with me, as to the common course of
proceedings, I mean in putting Mr. Attorney
upon proving, that my client printed and published those papers mentioned in the information; yet I cannot think it proper for me (without doing violence to my own principles) to
deny the publication of a complaint, which, I
think, is the right of every free-born subject to
make, when the matters so published can be
supported with truth; and therefore I'll save
Mr. Attorney the trouble of examining his witnesses to that point; and I do (for my client)
confess, that he both printed and published the
two newspapers set forth in the information,
and I hope in so doing he has committed no
crime.
Mr. Attorney. Then, if your honour pleases,
since Mr. Hamilton has confessed the fact, I
think our witnesses may be discharged; we
have no further occasion for them.
Mr. Hamilton. If you brought them here
only to prove the printing and publishing of
these newspapers, we have acknowledged that,
and shall abide by it.
Here my journeyman and two sons (with
several others subpœna'd by Mr. Attorney, to
give evidence against me) were discharged,
and there was silence in the Court for some
time.
Mr. Chief Justice. Well, Mr. Attorney, will
you proceed?
Mr. Attorney. Indeed, Sir, as Mr. Hamilton has confessed the printing and publishing
these libels, I think the jury must find a verdict for the king; for supposing they wore
true, the law says that they are not the less libellous for that; nay indeed the law says,
their being true is an aggravation of the crime.
Mr. Hamilton, Not so neither, Mr. Attorney,
there are two words to that bargain: I hope it
is not our bare printing and publishing a paper,
that will make it a libel: you will have something more to do, before you make my client a
libeller; for the words themselves must be libellous, that is false, scandalous, and seditious,
or else they are not guilty.
As Mr. Attorney has not been pleased to favour us with his argument which he read, or
w i t h the notes of it, we cannot take upon us to
set down his words, but only to shew the book
cases he cited, and the general scope of his
argument, which he drew from those authorities. 'He observed upon the excellency, as
well as use of government, and the great regard and reverence which had been constantly
paid to it, both under the law and the gospel.
That by government we were protected in our
lives, religion and properties; and that, for
these reasons, great care had always been taken
to prevent every thing that might tend to scandalize magistrates, and others concerned in the
administration of the government, especially
the supreme magistrate. And that there were
many instances of very severe judgments, and
of punishments inflicted upon such as had attempted to bring the government into contempt; by publishing false and scurrilous
libels against it, or by speaking evil and scandalous words of men in authority; to the
great disturbance of the public peace.' And
to support this, he cited 5 Coke 121. (I suppose it should be 125.) Wood's Instit. 430.
2 Lilly 168. 1 Hawkins 73. 11. 6. From
these books he insisted, 'That a libel was a
malicious defamation of any person, expressed
either in printing or writing, signs or pictures,
to asperse the reputation of one that is alive, or
the memory of one that is dead; if he is a private man, the libeller deserves a severe punishment, but if it is against a magistrate, or other
public person, it is a greater offence; for this
concerns not only the breach of the peace, but
the scandal of the government; for what greater
scandal of government can there be, than to
have corrupt or wicked magistrates to be appointed by the king, to govern his subjects
under him? And a greater imputation to the
state cannot be, than to suffer such corrupt men
to sit in the sacred seat of justice, or to have
any meddling in, or concerning the administration of justice.' And from the same books
Mr Attorney insisted, that whether the person
defamed is a private man or a magistrate, whether living or dead, whether the libel is true or
false, or if the party against whom it is made is
of good or evil fame, it is nevertheless, a libel.
For in a settled state of government, the party
grieved ought to complain for every injury
done him, in the ordinary course of the law.
And as to its publication, the law had taken so
great care of men's reputations, that if one maliciously repeats it, or sings it in the presence
of another, or delivers the libel or a copy of it
over, to scandalize the party, he is to be punished as a publisher of a libel. He said it was
likewise evident, that libelling was an offence
against the law of God. Acts xxiii. 5. Then,
said Paul, I wist not, brethren, that he was the
high priest: For it is written, Thou shalt not
speak evil of the ruler of the people. 2 Peter
ii. 10. Despise government, presumptuous are
they, self-willed, they are not afraid to speak
evil of dignities, &c. He then insisted that it
was clear, both by the law of God and man,
that it was a very great offence to speak evil of,
or to revile those in authority over us; and
that Mr. Zenger had offended in a most notorious and gross manner, in scandalizing his excellency our governor, who is the king's immediate representative, and the supreme magistrate of this province : for can there be any
thing more scandalous said of a governor than
what is published in those papers? Nay, not
only the governor, but both the council and
assembly are scandalized; for there it is plainly
said, That 'as matters now stand, their liberties
and properties are precarious, and that slavery
is like to be entailed on them and their posterity.
And then again Mr. Zenger says,
The assembly ought to despise the smiles or
frowns of a governor; that he thinks the law
is at an end; that we see men's deeds destroyed,
judges arbitrarily displaced, new courts erected,
without consent of the legislature; and, that it
seems trials by juries are taken away when a
governor pleases; that none can call any thing
their own, longer than those in the administration will condescend to let them do it.' —
And Mr. Attorney added, ' That he did not
know what could be said in defence of a man,
that had so notoriously scandalized the governor
and principal magistrates and officers of the government, by charging them with depriving
the people of their rights and liberties, and
taking away trials by juries; and in short,
putting an end to the law itself. — If this was
not a libel, he said he did not know what was
one. Such persons as will take those liberties
with governors and magistrates, he thought,
ought to suffer for stirring up sedition and discontent among the people. And concluded,
by saying, that the government had been very
much traduced and exposed by Mr. Zenger,
before he was taken notice of; that at last it
was the opinion of the governor and council,
that he ought not to be suffered to go on, to
disturb the peace of the government, by publishing such libels against the governor, and
the chief persons in the government; and
therefore they had directed this prosecution, to
put a stop to this scandalous and wicked practice, of libelling and defaming his majesty's government and disturbing his majesty's peace.'
Mr. Chambers then summed up to the jury,
observing with great strength of reason on
Mr. Attorney's defect of proof, that the papers
in the information were false, malicious or seditious, which was incumbent on him to prove
to the jury, and without which they could not
on their oaths say, that they were so as
charged.
Mr. Hamilton. May it please your honour : I agree with Mr. Attorney, that government is a sacred thing; hut I differ very
widely from him, when be would insinuate,
that the just complaints of a number of men,
who suffer under a bad administration, is libelling that administration. Had I believed that
to be law, I should not have given the Court
the trouble of hearing any thing that I could say
in this cause. I own, when I read the information, I had not the art to find out (without the
help of Mr. Attorney's innuendos) that the governor was the person meant in every period of
that news-paper; and I was inclined to believe,
that they were wrote by some, who from an extraordinary zeal for liberty, had misconstrued
the conduct of some persons in authority into
crimes; and that Mr. Attorney, out of his too
great zeal for power, had exhibited this information, to correct the indiscretion of my
client; and at the same time, to shew his Superiors the great concern he had, lest they
should be treated with any undue freedom.
But from what Mr. Attorney has just now said,
to wit, That this prosecution was directed by the
governor and council, and from the extraordinary appearance of people of all conditions
which I observe in Court upon this occasion, I
have reason to think, that those in the administration have by this prosecution something
more in view, and that the people believe
they have a good deal more at stake than I
apprehended; and, therefore, as it is become my
duty, to be both plain and particular in this
cause, I beg leave to bespeak the patience of
the Court.
I was in hopes, as that terrible court, where
those dreadful judgments were given, and that
law established, which Mr. Attorney has produced for authorities to support this cause, was
long ago laid aside, as the most dangerous
court to the liberties of the people of England
that ever was known in that kingdom; that
Mr, Attorney knowing this, would not have
attempted to set up a Star-Chamber here, nor to
make their judgments a precedent to us : for
it is well known, that what would have been
judged treason in those days for a man to speak,
I think, has since not only been practised as
lawful, but the contrary doctrine has been held
to be law.
In Brewster's case, for printing, That the
subjects might defend their rights and liberties
by arms, in case the king should go about to
destroy them, he was told, by the chief-justice,
that it was a great mercy he was not proceeded
against for his life; for that to say the king
could be resisted, by arms in any case what-
soever, was express treason. And yet we see,
since that time, Dr. Sacheverell was sentenced
in the highest court in Great Britain, for saying, that such a resistance was not lawful.
Besides, as times have made very great
changes in the laws of England, so in my
opinion, there is good reason that places should
do so too.
Is it not surprising to see a subject, upon his
receiving a commission from the king to be a
governor of a colony in America, immediately
imagining himself to be vested with all the
prerogatives belonging to the sacred person of
his prince? And which is yet more astonishing,
to see that a people can be so wild as to allow
of and acknowledge those prerogatives and exemptions, even to their own destruction? Is it
so hard a matter to distinguish between the
majesty of our sovereign, and the power of a
governor of the plantations? Is not this making
very free with our prince, to apply that regard,
obedience and allegiance to a subject which is
due only to our sovereign? And yet in all the
cases which Mr. Attorney has cited to shew
the duty and obedience we owe to the supreme
magistrate, it is the king that is there meant
and understood, though Mr. Attorney is pleased
to urge them as authorities to prove the heinousness of Mr. Zenger's offence against the
governor of New-York. The several plantations are compared to so many large corporations, and perhaps not improperly; and can
any one give as instance, that the mayor or
head of a corporation ever put in a claim to the
sacred rights of majesty? Let us not (while
we are pretending to pay a great regard to our
prince and his peace) make bold to transfer
that allegiance to a subject, which we owe to
our king only. What strange doctrine is it, to
press every thing for law here which is so in
England? I believe we should not think it a
favour, at present at least, to establish this
practice. In England so great a regard and
reverence is had to the judges, (C. 3 Inst.
140.) that if any man strikes another in Westminster-hall, while the judges are sitting, he
shall lose his right-hand, and forfeit his land
and goods for so doing. And though the
judges here claim all the powers and authorities within this government, that a court of
King's-bench has in England, yet I believe
Mr. Attorney will scarcely say, that such a
punishment could he legally inflicted on a man
for committing such an offence, in the presence of the judges sitting in any court within
the province of New-York. The reason is obvious; a quarrel or riot in New-York cannot
possibly be attended with those dangerous consequences that it might in Westminster-hall;
nor (I hope) will it be alleged, that any misbehaviour to a governor in the plantations, will,
or ought to be judged of or punished, as a like
undutifulness would be to our sovereign. From
all which, I hope Mr. Attorney will not think
it proper to apply his law-cases (to support the
cause of his governor), which have only been
judged, where the king's safety or honour was
concerned. It will not be denied but that a
freeholder, in the province of New-York, has
as good a right to the sole and separate use of
his lands, as a freeholder in England, who has
a right to bring an action of trespass against
his neighbour, for suffering his horse or cow
to come and feed upon his lands, or eat his
corn, whether inclosed or not inclosed; and
yet I believe it would be looked upon as a
strange attempt for one man here to bring an
action against another, whose cattle and horses
feed upon his grounds not inclosed, or indeed
for eating and treading down his corn, if that
were not inclosed. Numberless are the instances of this kind that might be given, to
shew, that what is good law at one time, and
in one place, is not so at another time, and in
another place; so that I think the law seems
to expect, that in these parts of the world, men
should take care, by a good fence, to preserve
their property from the injury of unruly beasts.
And perhaps there may be as good a reason
why men should take the same care, to make
an honest and upright conduct a fence and
security against the injury of unruly tongues.
Mr. Attorney. I don't know what the gentleman means, by comparing cases of freeholders in England with the freeholders here.
What has this case to do with actions of trespass, or men's fencing their ground? The
case before the Court is, Whether Mr. Zenger
is guilty of libelling his excellency the governor of New-York, and indeed the whole
administration of the government? Mr. Hamilton has confessed the printing and publishing,
and I think nothing is plainer, than that the
words in the information are scandalous, and
tend to sedition, and to disquiet the minds of
the people of this province. And if such
papers are not libels, I think it may be said,
there can be no such thing as a libel.
Mr. Hamilton. May it please your honour,
I cannot agree with Mr. Attorney; for though
I freely acknowledge that there are such things
as libels, yet I must insist at the same time,
that what my client is charged with, is not a
libel; and I observed just now, that Mr. Attorney, in defining a libel, made use of the
words, scandalous, seditious, and tend to disquiet the people; but (whether w i t h design, or
not, I will not say) he omitted the word false.
Mr. Attorney. I think I did not omit the
word false: but it has been said already, that
it may be a libel, notwithstanding it may be
true.
Mr. Hamilton. In this I must still differ with
Mr. Attorney; for I depend upon it, we are
to be tried upon this information now before
the Court and jury, and to which we hare
pleaded Not Guilty, and by it we are charged
with printing and publishing a certain false,
malicious, seditious and scandalous libel. This
word false must have some meaning, or else
how came it there? I hope Mr. Attorney will
not say he put it there by chance, and I am of
opinion his information would not be good
without it. But to shew that it is the princi-
which, in my opinion, makes a
gallibel,thing,
I put the case, the information had
dence, which goes to his acquittal; as in
murder he may prove it was in defence of his
been for printing and publishing a certain true life, his house, &c. and in assault and battery,
libel, would that be the same thing? Or could he may give in evidence, that the other party
Mr. Attorney support such an information by struck first, and in both cases he will be acany precedent in the English law? No, the quitted. And in this sense I understand the
falshood makes the scandal, and both make word justify, when applied to the case before
the libel. And to shew the Court that I am the Court.
in good earnest, and to save the Court's time,
Mr. Chief Justice. I pray shew that you can
and Mr. Attorney's trouble, I will agree; that give the truth of a libel in evidence.
if he can prove the facts, charged upon us to
Mr. Hamilton. I am ready, both from what
be false, I'll own them to be scandalous, se- I understand to be the authorities in the case,
ditious, and a libel. So the work seems now and from the reason of the thing, to shew that
to be pretty much shortened, and Mr. Attorney we may lawfully do so. But here I beg leave
has now only to prove the word false, in order to observe, that informations for libels is a
to make us guilty.
child, if not born, yet nursed up, and brought
Mr. Attorney. We have nothing to prove; to full maturity, in the Court of the Staryou have confessed the printing and publish- Chamber.
ing; but if it was necessary (as I insist it is Mr. Chief Justice. Mr. Hamilton, you'll
not), how can we prove a negative? But I find yourself mistaken; for in Coke's Instihope some regard will be had to the autho- tutes you'll find informations for libels, long
rities that have been produced; and that sup- before the Court of Star-Chamber.
posing all the words to be true, yet that will
Mr. Hamilton. I thank your honour; that
not help them; that chief justice Holt, in his is an authority I did propose to speak to by and
charge to the jury, in the case of Tutchin, bye: but as you have mentioned it, I'll read
made no distinction, whether Tutchin's papers that authority now. I think it is in the 3 Co.
were true or false; and as chief justice Holt Inst. under title Libel; it is the case of John
has made no distinction in that case, so none de Northampton for a letter wrote to Robert de
ought to he made here; nor can it be shewn Ferrers, one of the king's privy council, (Coke
in all that case, there was any question made 3 Inst. 174,) concerning sir William Scot, chief
about their being false or true.
justice, and his fellows; but it does not appear
Mr. Hamilton. I did expect to hear, that a to have been upon information; and I have good
negative cannot be proved; but every body grounds to say it was upon indictment, as was
knows there are many exceptions to that ge- the case of Adam de Ravensworth, just menneral rule; for if a man is charged with kill- tioned before by lord Coke under the same
ing another, or stealing his neighbour's horse; title; and I think there cannot be a greater, at
if be is innocent in the one case, he may least a plainer authority for us, than the judgprove the man said to be killed to be really ment in the case of John de Northampton,
alive; and the horse said to be stolen, never to which my lord has set down at large. "Et
have been out of his master's stable, &c. and quia prædictus Johannes cognovit dictam Litethis I think is proving a negative. But we ram per se scriptam Roberto de Ferrers, qui
will save Mr. Attorney the trouble of proving est de Concilio Regis, quæ litera continet in se
a negative, and take the onus probandi upon nullam veritatem," &c. Now Sir, by this
ourselves, and prove those very papers that are judgment it appears the libellous words were
called libels to be true.
utterly false, and there the falshood was the
Mr. Chief Justice. You cannot be admitted, crime, and is the ground of that judgment:
Mr. Hamilton, to give the truth of a libel in and is not that w h a t we contend for? Do not
evidence. A libel is not to be justified; for it we insist that the falshood makes the scandal,
is nevertheless a libel that it is true.
and both make the libel? And how shall it be
Mr. Hamilton. I am sorry the Court has so known whether the words are libellous, that is,
soon resolved upon that piece of l a w ; I ex- true or false, but by admitting us to prove them
pected first to have been heard to that point. true, since Mr. Attorney will not undertake to
I have not in all my reading met with an au- prove them false? Besides, is it not against
thority that says, we cannot be admitted to common sense, that a man should be punished
give the truth in evidence, upon an informa- in the same degree for a true libel (if any such
thing could be) as for a false one? I know it is
tion for a libel.
Mr. Chief Justice. The law is clear, that said, that truth makes a libel the more provoking, and therefore the offence is the greater,
you cannot justify a libel.
Mr. Hamilton. I own that, may it please and consequently the judgment should be the
your honour, to he so; but with submission I heavier. Well, suppose it were so, and let us
understand the word, justified, there to be a agree for once, that truth is a greater sin than
justification by plea, as it is in the case upon falshood: yet as the offences are not equal, and
an indictment for murder, or an assault and as the punishment is arbitrary, that is, accordbattery; there the prisoner cannot justify, but ing as the judges in their discretion shall direct
plead Not Guilty: yet it will not be denied but to be inflicted; is it not absolutely necessary
he may, and always is admitted to give the that they should know whether the libel is true
truth of the fact, or any other matter in evi- or false, that they may by that means be able
to proportion the punishment? For would it
not be a sad case, it the judges, for want of a
due information, should chance to give as severe a judgment against a man for writing or
publishing a lie, as for writing or publishing a
truth? And yet this (with submission,) as
monstrous and ridiculous as it may seem to be,
is the natural consequence of Mr. Attorney's
doctrine, that truth makes a worse libel than
falshood, and must follow from his not proving
our papers to be false, or not suffering us to
prove them to be true. But this is only reasoning upon the case, and I will now proceed
to shew, what in my opinion will be sufficient
to induce the Court to allow us to prove the
truth of the words, which in the information
are called libellous. And first I think there
cannot be a greater authority for us, than the
judgment I just now mentioned in the case of
John de Northampton, and that was in early
times, and before the Star-chamber came to its
fulness of power and wickedness. In that
judgment, as I observed, the falshood of the
letter which was wrote, is assigned as the very
ground of the sentence. And agreeable to this
it was urged by sir Robert Sawyer in the trial
of the Seven Bishops,* that the falsity, the malice, and seditions of the writing, were all facts
to be proved. But here it may be said, sir
Robert was one of the Bishops' counsel, and his
argument is not to be allowed for law: but I
ofter it only to shew, that we are not the first
who have insisted, that to make a writing a
libel, it must be false. And if the argument of
a counsel must have no weight, I hope there
will be more regard shewn to the opinion of a
judge; and therefore I mention the words of
justice Powel in the same trial, where he says
(of the Petition of the Bishops, which was
called a libel, and upon which they were prosecuted by information,) that, to make it a
libel, it must be false and malicious, and tend to
sedition; and declared, as he saw no falshood
or malice in it, he was of opinion, that it was no
libel. Now, I should think this opinion alone,
in the case of the king, and in a case which
that king had so much at heart, and which to
this day has never been contradicted, might be
a sufficient authority, to entitle us to the liberty
of proving the truth of the papers, which in
the information are called false, malicious, seditious, and scandalous. If it be objected, that
the opinion of the other three judges were
against him, I answer, that the censures the
judgments of these men have undergone, and
the approbation justice Powel's opinion, his
judgment and conduct upon that trial, has met
with, and the honour he gained to himself, for
daring to speak truth at such a time, upon such
an occasion, and in the reign of such a king, is
more than sufficient, in my humble opinion, to
warrant our insisting on his judgment, as a full
authority to our purpose; and it will lie upon
Mr. Attorney to shew, that this opinion has,
since that time, been denied to be law; or that
† See his Case, vol.
14, p.the
513.
* See
Case, vol. 12, p. 183.
justice Powel, who delivered it, has ever been
condemned or blamed fur it, in any law-book
extant at this day; and this, I will venture to
say, Mr. Attorney cannot do. But, to make
this point yet more clear, if any thing can be
clearer, I will, on our part, proceed and shew,
that in the case of sir Samuel Barnardiston, his
counsel, notwithstanding he stood before one
of the greatest monsters that ever presided in
an English court (judge Jefferies,) insisted on
the want of proof to the malice and seditious
intent of the author, of what was called a libel.
And in the case of Tutchin, which seems to be
Mr. Attorney's chief authority, that case is
against him; for he was, upon his trial, put
upon shewing the truth of his papers, but did
not; at least the prisoner was asked by the
king's counsel,* whether he would say they
were true? And as he never pretended that
they were true, the chief justice was not to say
so. But the point will still be clearer, on our
side, from Fuller's case,† for falsely and wickedly causing to be printed a false and scandalous
libel, in which (amongst other things) were
contained these words. "Mr. Jones has also
made oath, that he paid 5,000l. more, by the
late king's order, to several persons in places of
trust, that they might complete my ruin, and
invalidate me for ever. Nor is this all; for
the same Mr. Jones will prove, by undeniable
witness and demonstration, that he has distributed more than 180,000l. in eight years last
past, by the French king's order, to persons in
public trust in this kingdom." Here, you see,
is a scandalous and infamous charge against
the late k i n g ; here is a charge, no less than
high treason, against the men in public trust,
for receiving money of the French king, then
in actual war with the crown of Great Britain;
and yet the Court were far from bearing him
down with that Star-chamber doctrine, to wit,
that it was no matter, whether what he said
was true or false; no, on the contrary, lord
chief justice Holt asks Fuller, "Can you make
it appear they are true? Have you any witnesses? You might have had subpoenas for
your witnesses against this day. If you take
upon you to write such things as you are
charged with, it lies upon you to prove them
true, at your peril. If you have any witnesses,
I will hear them. How came you to write
those books which are not true? If you have
any witnesses produce them. If you can offer
any matter to prove what you have wrote, let
us hear it." Thus said, and thus did, that great
man, lord chief justice Holt, upon a trial of the
like kind with ours; and the rule laid down by
him, in this case, is, that he who will take upon
him to write things, it lies upon him to prove
them at his peril. Now, Sir, we have acknowledged the printing and publishing of those
papers, set forth in the information, and (with
the leave of the Court) agreeable to the rule
* See his Case, vol. 14, p. 1123.
laid down by chief justice Holt, we are ready
to prove them to be true, at our peril.
Mr. Chief Justice. Let me see the book.
Here the Court had the Case under consideration a considerable time, and every one was
silent.
Mr. Chief Justice. Mr. Attorney, you have
beard what Mr. Hamilton has said, and the
cases he has cited, for having his witnesses
examined, to prove the truth of several facts
contained in the papers set forth in the information. What do you say to it?
Att. Gen. The law, in my opinion, is very
clear: they cannot be admitted to justify a
libel; for, by the authorities I have already
read to the Court, it is not the less a libel because it is true. I think I need not trouble
the Court with reading the cases over again;
the thing seems to be very plain, and I submit
it to the Court.
Mr. Chief Justice. Mr. Hamilton, the Court
is of opinion, you ought not to be permitted to
prove the facts in the papers: these are the
words of the book, "It is far from being a justification of a libel, that the contents thereof
are true, or that the person upon whom it is
made had a bad reputation, since the greater
appearance there is of truth in any malicious
invective, so much the more provoking it is."
Mr. Hamilton. These are Star-chamber
cases, and I was in hopes that practice had
been dead with the Court.
Mr. Chief Justice. Mr. Hamilton, the
Court have delivered their opinion, and we expect you will use us with good manners: you
are not to be permitted to argue against the opinion of the Court.
Mr. Hamilton. With submission, I have seen
the practice in very great courts, and never
heard it deemed unmannerly to —
Mr. Chief Justice. After the Court have declared their opinion, it is not good-manners to
insist upon a point in which you are over-ruled.
Mr. Hamilton. I will say no more at this
time: the Court, I see, is against us in this
point; and that I hope I may be allowed to
say.
Mr. Chief Justice. Use the Court with
good-manners, and you shall be allowed all
the liberty you can reasonably desire.
Mr. Hamilton. I thank your honour. Then,
gentlemen of the jury, it is to you we must
now appeal, for witnesses to the truth of the
facts we have offered, and are denied the liberty to prove; and let it not seem strange,
that I apply myself to you in this manner; I
am warranted so to do, both by law and reason.
The law supposes you to be summoned out of
the neighbourhood where the fact is alleged to
be committed; and the reason of your being
taken out of the neighbourhood is, because you
are supposed to have the best knowledge of the
fact that is to be tried. And were you to find
a verdict against my client, you must take
upon you to say, the papers referred to in the
information, and which we acknowledge we
printed and published, are false, scandalous,
and seditious; but of this I can have no apprehension. You are citizens of New York : you
are really, what the law supposes you to be,
honest and lawful men; and, according to my
brief, the facts which we offer to prove were
not committed in a corner; they are notoriously known to be true; and therefore in
your justice lies our safety. And as we
are denied the liberty of giving evidence, to
prove the truth of what we have published,
will beg leave to lay it down as a standing rule
in such cases, That the suppressing of evidence ought always to be taken for the
strongest evidence; and I hope it will have
that weight with you. But since we are not
admitted to examine our witnesses, I will endeavour to shorten the dispute with Mr. Attorney; and to that end, I. desire he would favour us with some standard definition of a libel,
by which it may be certainly known, whether
a writing be a libel, yea or not.
Att. Gen. The books, I think, have given a
very full definition of a libel: they say (1
Hawk. chap. 73, § 1, et seq.) it is, "in a strict
sense, taken for a malicious defamation, expressed either in writing or printing, and tending either to blacken the memory of one who is
dead, or the reputation of one who is alive, and
to expose him to public hatred, contempt or ridicule. § 2. But it is said, That, in a larger
sense the notion of a libel may be applied to
any defamation whatsoever, expressed either
by signs or pictures, as by fixing up a gallows
against a man's door, or by painting him in a
shameful and ignominious manner. §. 3. And
since the chief cause for which the law so severely punishes all offences of this nature, is
the direct tendency of them to a breach of public peace, by provoking the parties injured,
their friends and families, to acts of revenge,
which it would be impossible to restrain by the
severest laws, were there no redress from public justice for injuries of this kind, which, of all
others, are most sensibly felt; and since the
plain meaning of such scandal, as is expressed
by signs or pictures, is as obvious to common
sense, and as easily understood by every common capacity, and altogether as provoking as
that which is expressed by writing or printing,
why should it not be equally criminal? § 4.
And from the same ground it seemeth also
clearly to follow, that such scandal, as is expressed in a scoffing and ironical manner,
makes a writing as properly a libel, as that
which is expressed in direct terms; as where a
writing, in a taunting manner reckoning up several acts of public charity done by one, says,
You will not play the Jew, nor the Hypocrite,
and so goes on in a strain of ridicule to insinuate, that what he did was owing to his vainglory; or where a writing, pretending to recommend to one the characters of several great
men for his imitation, instead of taking notice of what they are generally esteemed famous for, pitched on such qualities only which
their enemies charge them with the want of;
as by proposing such a one to be imitated for
his courage, who is known to be a great statesman, but no soldier; and another to be imitated
for his learning, who is known to be a great
general, but no scholar, &c. which kind of
writing is as well understood to mean only to
upbraid the parties with the want of these qualities, as if it had directly and expressly done
so."
Mr. Hamilton. Ay, Mr. Attorney; but what
certain standard rule have the books laid down,
by which we can certainly know whether the
words or the signs are malicious? Whether
they are defamatory? Whether they tend to
the breach of the peace, and are a sufficient
ground to provoke a man, his family, or
friends, to acts of revenge, especially those of
the ironical sort of words? And what rule have
you to know when I write ironically? I think it
would be hard, when I say, Such a man is a
very worthy, honest gentleman, and of fine
understanding, that therefore I meant he was a
knave or a fool.
Ait. Gen. I think the books are very full: it
is said in 1 Hawk. p. 193, just now read,
"That such scandal as is expressed in a scoff,
ing and ironical manner, makes a writing as
properly a libel, as that which is expressed in
direct terms; as where a writing, in a taunting manner says, reckoning up several acts of
charity done by one, You will not play the Jew
or the hypocrite; and so goes on to insinuate,
that what he did was owing to his vain-glory,
&c. which kind of writing is as well understood to mean only to upbraid the parties with
the want of these qualities, as if it had directly
and expressly done so." I think nothing can
be plainer or more full than these words.
Mr. Hamilton. I agree the words are very
plain; and I shall not scruple to allow (when
we are agreed that the words are false and
scandalous, and were spoken in an ironical and
scoffing manner, &c.) that they are really
libellous; but here stiil occurs the uncertainty,
which makes the difficulty to know what words
are scandalous, and what not; for you say,
they may be scandalous, true or false : besides,
how shall we know whether the words were
spoke in a scoffing and ironical manner, or
seriously? Or how can you know, whether
the man did not think as he wrote? For, by
your rule, if he did, it is no irony, and consequently no libel. But, under favour, Mr. Attorney, I think the same book, and the same
section, will shew us the only rule by which
all these things are to be known. The words
are these; 'which kind of writing is as well
understood to mean only to upbraid the parties with the want of these qualities, as if they
had directly and expressly done so.' Here, it
is plain, the words are scandalous, scoffing, and
ironical, only as they are understood; I know
no rule laid down in the books but this; I
mean, as the words are understood.
Mr. Chief Justice. Mr. Hamilton, do you
think it so hard to know when words are ironical, or spoke in a scoffing manner?
Mr. Hamilton. I own it may be known;
but I insist, the only rule to know is, as I do or
can understand them : I have no other rule to
go by, but as I understand them.
Mr. Chief Justice. That is certain. All
words are libellous, or not, as they are understood. Those who are to judge of the words,
must judge whether they are scandalous or
ironical, tend to the breach of the peace, or are
seditious : there can be no doubt of it.
Mr. Hamilton. I thank your honour; I.am
glad to find the Court of this opinion. Then
it follows, that those twelve men must understand the words in the information to be scandalous, that is to say, false; for I think it is
not pretended they are of the ironical sort; and
when they understand the words to be so, they
will say we are guilty of publishing a false
libel, and not otherwise.
Mr. Chief Justice. No, Sir. Hamilton; the
jury may find that Mr. Zenger printed and published those papers, and leave it to the Court to
judge whether they are libellous. You know
this is very common: it is in the nature of a
Special Verdict, where the jury leave the matter of law to the Court.
Mr. Hamilton. I know, may it please your
honour, the jury may do so; but I do likewise
know they may do otherwise. I know they
have the right, beyond all dispute, to determine
both the law and the fact; and where they do
not doubt of the law, they ought to do so.
This of leaving it to the judgment of the Court,
whether the words are libellous or not, in
effect, renders juries useless (to say no worse)
in many cases; but this I shall have occasion
to speak to by-and-bye : and I will, with the
Court's leave, proceed to examine the inconveniences that must inevitably arise from the
doctrines Mr. Attorney has laid down; and I
observe, in support of this prosecution, he has
frequently repeated the words taken from the
case of Libellis Famosis, in 5 Co. This is indeed the leading case, and that to which almost
all the other cases upon the subject of libels dx>
refer; and I must insist upon saying, that, according as this case seems to be understood by the
Court and Mr. Attorney, it is not law at this
day : for though I own it to be base and unworthy to scandalize any man, yea, I think it
is even villainous to scandalize a person of public character; and I will go so far into Mr.
Attorney's doctrine as to agree, that if the
faults, mistakes, nay even the vices, of such a
person be private and personal, and don't affect
the peace of the public, or the liberty or property of our neighbour, it is unmanly and unmannerly to expose them, either by word or
writing. But when a ruler of the people brings
his personal failings, but much more his vices,
into his administration, and the people find
themselves affected by them, either in their
liberties or properties, that will alter the case
mightily; and all the high things that are said
in favour of rulers, and of dignities, and upon
the side of power, will not be able to stop people's mouths when, they feel themselves op-
pressed, I mean in a free government. It is I
true, in times past, it was a crime to speak
truth; and in that terrible court of Starchamber, many worthy and brave men suffered
for so doing; and yet, even in that court, and
in those bad times, a great and good man durst
say, what I hope will not be taken amiss of me
to say in this place, to wit, "The practice of
informations tor libels is a sword in the hands
of a wicked king, and an arrand coward, to cut
down and destroy the innocent; the one cannot
because of his high station, and the other dares
not, because of his want of courage, revenge
himself in another manner."
Alt. Gen. Pray, Mr. Hamilton, have a care
what you say; don't go too far neither : I don't
like those liberties.
Mr. Hamilton. Sure, Mr. Attorney, you
won't make any applications: All men agree,
that we are governed by the best of kings; and
I cannot see the meaning of Mr. Attorney's
caution: My well known principles, and the
sense I have of the blessings we enjoy under
his present majesty, make it impossible for me
to err, and, I hope, even to be suspected, in
that point of duty to my king. May it please
your honour, I was saying, that notwithstanding all the duty and reverence claimed by Mr.
Attorney to men in authority, they are not exempt from observing the rules of common
justice, either in their private or public capapacities; the laws of our mother-country know
no exception. It is true, men in power are harder
to be come at, for wrongs they do, cither to a
private person, or to the public; especially a
governor in the plantations, where they insist
upon an exemption from answering complaints
of any kind in their own government. We are
indeed told, and it is true they are obliged to
answer a suit in the king's courts at Westminster, for a wrong done to any person here:
But do we not know how impracticable this
is to most men among us, to leave their families,
(who depend upon their labour and care for
their livelihood) and carry evidences to Britain,
and at a great, nay, a far greater expence,
than almost any of us are able to bear, only to
prosecute a governor for an injury done here?
But when the oppression is general, there is no
remedy even that way : No, our constitution
has (blessed be God) given us an opportunity,
if not to have such wrongs redressed, yet, by
our prudence and resolution, we may in a great
measure prevent the committing of such
wrongs, by making a governor sensible, that
it is his interest to be just to those under his
care; for such is the sense that men in genera!
(I mean freemen) have of common justice,
that when they come to know that a chief magistrate abuses the power with which he is intrusted for the good of the people, and is attempting to turn that very power against the
innocent, whether of high or low degree, I say,
mankind in general seldom fail to interpose,
and, as far as they can, prevent the destruction
of their fellow subjects. And has it not often
been seen (and, I hope, it will always be seen)
that when the representatives of a free people
are, by just representations or remonstrances,
made sensible of the sufferings of their fellow
subjects, by the abuse of power in the hands
of a governor, they have declared (and loudly
too) that they were not obliged by any law to
support a governor who goes about to destroy a
province or colony, or their privileges, which
by his majesty he was appointed, and by the
law he is bound, to protect and encourage.
But I pray it may be considered, of what use is
this mighty privilege, if every man that suffers
must be silent? And if a man must be taken
up as a libeller, far telling his sufferings to his
neighbour, I know it may be answered, Have
you not a legislature? have you not a House
of Representatives, to whom you may complain? And to this I answer, We have : But
what then? Is an Assembly to be troubled with
every injury done by a governor? Or are they
to hear of nothing but what those in the administration will please to tell them? Or w h a t
sort of a trial must a man have? And how
is he to be remedied; especially if the case
were, as I have known it to happen in
America in my time, that a governor who has
places (I will not say pensions, for, I believe
they seldom give that to another which they
can take to themselves) to bestow, and can or
will keep the same Assembly (after he has modelled them so as to get a majority of the
House in his interest) for near twice seven years
together? I pray, what redress is to be expected for an honest man, who makes his complaint against a governor to an Assembly, who
may properly enough be said to be made by
the same governor against whom the complaint
is made? The thing answers itseif. No, it is
natural, it is a privilege — I will go farther,
it is a right which all freemen claim, and are
intitled to, to complain when they are hurt; they
have a right publicly to remonstrate against the
abuses of power, in the strongest terms, to put
their neighbours upon their guard, against the
craft or open violence of men in authority, and
to assert with courage the sense they have of
the blessings of liberty, the value they put upon
it, and their resolution at all hazards to preserve it, as one of the greatest blessings heaven
can bestow. And when a House of Assembly,
composed of honest freemen, sees the general
bent of the people's inclinations, that is it
which must and will (I'm sure it ought to)
weigh with a legislature, in spite of all the
craft, caressing, and cajoling, made use of by
a governor, to divert them from hearkening to
the voice of their country. As we all very well
understand the true reason, why gentlemen
take so much pains, and make such great interest, to be appointed governors, so the design
of their appointment is not less manifest. We
know his majesty's gracious intentions to his
subjects; he desires no more than that his people in the plantations should be kept up to their
duty and allegiance to the crown of Great Britain; that peace may be preserved amongst
them, and justice impartially administered;
that we may be governed so as to render us useful to our mother-country by encouraging us to
make and raise such commodities as may be
useful to Great Britain. But w i l l any one say,
that all or any of these good ends are to be effected by a governor's setting his people together by the ears, and by the assistance of one
part of the people to plague and plunder the
other? The commission which governors bear,
while they execute the powers given them, according to the intent of the royal grantor, expressed in their commissions, requires and deserves very great reverence and submission; but
when a governor departs from the duty enjoined
him by his sovereign, and acts as if he was less
accountable than the royal hand that gave him
all that power and honour which he is possessed
of, this sets people upon examining and enquiring into the power, authority, and duty of such
a magistrate, and to compare those with his
conduct; and just as far as they find he exceeds
the bounds of his authority, or falls short in doing impartial justice to the people under his administration, so far they very often, in return,
come short in their duty to such a governor.
For power alone will not make a man beloved;
and I have heard it observed, that the man who
was neither good nor wise before his being
made a governor, never mended upon his preferment, but has been generally observed to be
worse: for men who are not endowed with
wisdom and virtue, can only be kept in bounds
by the law : and by how much the farther they
think themselves out of the reach of the law,
by so much the more wicked and cruel they
are. I wish there were no instances of the kind
at this day. And wherever this happens to be
the case of a governor, unhappy are the people
under his administration, and in the end he w i l l
find himself so too; for the people will neither
love him nor support him. I make no doubt
but there are those here, who are zealously
concerned for the success of this prosecution;
and yet I hope they are not many; and even
some of those, I am persuaded (when they
consider to what lengths such prosecutions may
be carried, and how deeply the liberties of the
people may be affected by such means) will not
all abide by their present sentiments; I say, not
all: for the man who, from an intimacy and
acquaintance with a governor, has conceived a
personal regard for him; the man who has felt
none of the strokes of his power; the man who
believes that a governor has a regard for him,
and confides in him; it is natural for such men
to wish well to the affairs of such a governor;
and as they may be men of honour and generosity, may, and no doubt will, wish him success,
so far as the rights and privileges of their fellow-citizens are not affected. But as men of
honour, I can apprehend nothing from them;
they will never exceed that point. There are
others that are under stronger obligations, and
those are such as are in some sort engaged in
support of a governor's cause, by their own or
their relations dependence on his favour for
some post or preferment: such men have,
what is commonly called, duty and gratitude
to influence their inclinations, and oblige them
to go his lengths. I know men's interests are
very near to them, and they will do much,
rather than forego the favour of a governor,
and a livelihood at the same time; but I can
with very just grounds hope, even from those
men, whom I wilt suppose to be men of honour,
and conscience too, that when they see the liberty of their country is in danger, either by
their concurrence, or even by their silence,
they will, like Englishmen, and like themselves, freely make a sacrifice of any preferment or favour, rather than be accessary to
destroying the liberties of their country, and
entailing slavery upon their posterity. There
are indeed another set of men, of whom I have
no hopes; I mean, such who lay aside all other
considerations, and are ready to join with power
in any shape, and with many or any sort of
men, by whose means or interest they may be
assisted to gratify their malice and envy, against
those whom they have been pleased to hate;
and that for no other reason, but because they
are men of abilities and integrity, or at least
are possessed of some valuable qualities far superior to their own. But as envy is the sin of
the devil, and therefore very hard, if at all, to
be repented of, I will believe there are but few
of this detestable and worthless sort of men, nor
will their opinions or inclinations have any influence upon this trial. But to proceed : I beg
leave to insist, that the right of complaining or
remonstrating is n a t u r a l ; and the restraint
upon this natural right is the law only, and
t h a t those restraints can only extend to what is
false : for as it is truth alone which can excuse
or justify any man for complaining of a bad administration, I as frankly agree, that nothing
ought to excuse a man who raises a false
charge or accusation, even against a private
person, and that no manner of allowance ought
to be made to him who does so against a public magistrate.
Truth ought to govern the
whole affair of libels, and yet the party accused
runs risk enough even then; for if he fails of
proving every tittie of what he has wrote, and
to the satisfaction of the Court and Jury too,
he may find to his cost, that when the prosecution is set on foot by men in power, it seldom
wants friends to favour it. And from thence
(it is said) has arisen the great diversity of opinions among judges, about what words were or
were not scandalous or libellous. I believe it
will be granted, that there is not greater uncertainty in any part of the law, than about
words of scandal: it would be mis-spending of
the Court's time to mention the cases; they
may be said to be numberless; and therefore
the utmost care ought to be taken in following
precedents; and the times when the judgments
were given, which are quoted for authorities in
the case of libels, are much to be regarded. I
think it will be agreed, that ever since the
time of the Star-Chamber, where the most arbitrary and destructive judgments and opinions
were given, that ever an Englishman heard of,
at least in his own country: I say, prosecutions
for libels since the time of that arbitrary court,
and until the glorious Revolution, have generally been set on foot at the instance of the
crown, or its ministers; and it is no small reproach to the law, that these prosecutions were
too often and too much countenanced by the
judges, who held their places at pleasure (a
disagreeable tenure to any officer, but a dangerous one in the case of a judge). To say
more to this point may not be proper. And
yet I cannot think it unwarrantable, to shew
the unhappy influence that a sovereign has
sometimes had, not only upon judges, but even
upon parliaments themselves.
It has already been shewn, how the judges
differed in their opinions about the nature of a
libel, in the case of the Seven Bishops. There
you see three judges of one opinion, that is, of
a wrong opinion, in the judgment of the best
men in England, and one judge of a right opinion. How unhappy might it have been for
all of us at this day, if that jury had understood
the words in that information as the Court did?
Or if they had left it to the Court to judge,
whether the Petition of the Bishops was or was
not a libel? No! they took upon them, to their
immortal honour, to determine both law and
fact, and to understand the Petition of the Bishops to be no libel, that is, to contain no falsehood nor sedition, and therefore found them
Not Guilty. And remarkable is the case of sir
Samuel Barnardiston, who was fined 10,000l,
for writing a letter, in which, it may be said,
none saw any scandal or falsehood but the
Court and Jury; for that judgment was afterwards looked upon as a cruel and detestable
judgment, and therefore was reversed by parliament. Many more instances might be given
of the complaisance of court-judges about those
times, and before; but I will mention only one
case more, and that is the case of sir Edward
Hales, who, though a Roman Catholic, was by
king James 2, preferred to be a colonel of his
army, notwithstanding the statute of 25 Ch. 2,
chap. 2, by which it is provided, That every
one that accepts of an office, civil or military,
&c. shall take the oaths, subscribe the declaration, and take the sacrament, within 3 months,
&c. otherwise he is disabled to hold such office,
and the grant for the same to be null and void,
and the party to forfeit 500l, Sir Edward
Hales did not take the oaths or sacrament, and
was prosecuted for the 500l. for exercising the
office of a colonel by the space of three months,
without conforming as in the act is directed.
Sir Edward pleads, That the king, by his letters patent, did dispense with his taking the
oaths and sacrament, and subscribing the declaration, and had pardoned the forfeiture of
500l. And whether the king's dispensation
was good, against the said act of parliament?
was the question. I shall mention no more of
this case, than to shew how in the reign of an
arbitrary prince, where judges hold their seats
at pleasure, their determinations have not al-
ways been such as to make precedents of, but
the contrary; and so it happened in this case,
where it was solemnly judged, That, notwithstanding this act of parliament, made in the
strongest terms, for preservation of the Protestant religion, that yet the king had, by his
royal prerogative, a power to dispense with
that law; and sir Edward Hales* was acquitted by the judges accordingly. So the
king's dispensing power being by the judges
set up above the act of parliament, this law,
which the people looked upon as their chief security against Popery and arbitrary power,
was, by this judgment, rendered altogether ineffectual. But this judgment is sufficiently exposed by sir Robert Atkins, late one of the
judges of the Court of Common Pleas, in his
Enquiry into the King's Power of Dispensing
with Penal Statutes; wherein it is shewn, who
it was that first invented dispensations; how
they came into England; what ill use has been
made of them there; and all this principally
owing to the countenance given them by the
judges. He says of the dispensing power, ' The
Pope was the inventor of it; our kings have
borrowed it from them; and the judges have,
from time to time, nursed and dressed it up,
and given it countenance; and it is still upon
the growth, and encroaching, till it has almost
subverted all law, and made the regal power
absolute, if not dissolute.' This seems not only
to shew how far judges have been influenced
by power, and how little cases of this sort,
where the prerogative has been in question in
former reigns, are to be relied upon for law : but
I think it plainly shews too, that a man may
use a greater freedom with the power of his sovereign, and the judges in Great Britain, than
it seems he may with the power of a governor
in the plantations, who is but a fellow-subject.
Are the words with which we are charged, like
these? Do Mr. Zenger's papers contain any
such freedoms with his governor, or his council, as sir Robert Atkins has taken with the regal power and the judges in England? And yet
I never heard of any information brought against
him for these freedoms.
If then, upon the whole, there is so great an
uncertainty among judges (learned and great
men) in matters of this kind; if power has
had so great an influence on judges, how cautious ought we to be in determining by their
judgments, especially in the plantations, and
in the case of libels? There is heresy in law as
well as in religion, and both have changed very
much; and we well know that it is not two
centuries ago that a man would have been
burnt as an heretic, for owning such opinions
in matters of religion as are publicly wrote and
printed at this day. They were fallible men,
it seems, and we take the liberty not only to
differ from them in religious opinions, but to
condemn them and their opinions too; and I
must presume, that in taking these freedoms in
thinking and speaking about matters of faith
* See his Case, vol. 11, p, 1166.
or religion, we are in the right: For, though
it is said there are very great liberties of this
kind taken in New-York, yet I have heard of
no information preferred by Mr. Attorney for
any offences of this sort.
From which I
think it is pretty clear, that in New-York a man
may make very free with his God, but he must
take special care what he says of his governor.
It is agreed upon by all men, that this is a
reign of liberty; and while men keep within
the bounds of truth, I hope they may with
safety both speak and write their sentiments of
the conduct of men in power, I mean of that
part of their conduct only, which affects the
liberty or property of the people under their
administration; were this to be denied, then the
next step may make them slaves. For what
notions can be entertained of slavery, beyond
that of suffering the greatest injuries and oppressions, without the liberty of complaining;
or if they do, to be destroyed, body and estate,
for so doing.
It is said, and insisted upon by Mr. Attorney:
That government is a sacred thing; that it is
to be supported and reverenced; it is government that protects our persons and estates;
that prevents treasons, murders, robberies, riots,
and all the train of evils that overturns kingdoms and states, and ruins particular, persons;
and if those in the administration, especially
the supreme magistrates, must have all their
conduct censured by private men, government
cannot subsist This is called a licentiousness
not to be tolerated. It is said, that it brings
the rulers of the people into contempt, and their
authority not to be regarded and so in the end
the laws cannot be put in execution. These, I
say, and such as these, are the general topics
insisted upon by men in power, and their advocates. But I wish it might be considered at
the same time, how often it has happened, that
the abuse of power has been the primary cause
of these evils, and that it was the injustice and
oppression of these great men, which has commonly brought them into contempt with the
people. The craft and art of such men is
great, and who, that is the least acquainted
with history or law, can be ignorant of the
specious pretences, which have often been
made use of by men in power, to introduce arbitrary rule, and destroy the liberties of a free
people. I will give two instances, and as they
are authorities not to be denied, nor can be misunderstood, I presume they will be sufficient.
The first is the statute of 3d of Hen. 7, cap.
1. The preamble of the statute will prove all,
and more than I have alleged. It begins:
'The king our sovereign lord remembereth, how
by unlawful maintenances, giving of liveries,
signs and tokens, &c. untrue demeanings of
sheriffs in making of pannels, and other untrue
returns, by taking of money, by injuries, by
great riots and unlawful assemblies; the policy
and good rule of this realm is almost subdued;
and for the not punishing these inconveniencies,
and by occasion of the premisses, little or nothing may be found by enquiry, &c. to the in-
crease of murders, &c. and unsureties of all men
living, and losses of their lands and goods.'
Here is a fine and specious pretence for introducing the remedy, as it is called, which is
provided by this act; that is, instead of being
lawfully accused by twenty-four good and lawful men of the neighbourhood, and afterwards
tried by twelve like lawful men, here is a power
given to the lord chancellor, lord treasurer, the
keeper of the king's privy seal, or two of them,
calling to them a bishop, a temporal lord, and
other great men mentioned in the act, (who, it
is to be observed, were all to be dependants on
the court) to receive information against any
person for any of the misbehaviours recited in
that act, and by their discretion to examine,
and to punish them according to their demerit.
The second statute I proposed to mention, is
the 11th of the same king, chap. 3d, the preamble of which act has the like fair pretences as
the former; for the king calling to his remembrance the good laws made against the
receiving of liveries, &c. unlawful extortions,
maintenances, embracery, &c. unlawful games,
&c. and many other great enormities, and offences committed against many good statutes,
to the displeasure of Almighty God, which, the
act says, could not, nor yet can, be conveniently punished by the due order of the law,
except it were first found by twelve men, &c.
which, for the causes aforesaid, will not find
nor yet present the truth. And therefore the
same statute directs, that the justices of assize,
and justices of the peace, shall upon information for the king before them made, have full
power, by their discretion, to hear and determine
all such offences. Here are two statutes that
are allowed to have given the deepest wound to
the liberties of the people of England of any
that I remember to have been made, unless it
may be said that the statute made in the time
of Henry 8th, by which his proclamations
were to have the effect of laws, might in its
consequence be worse. And yet we see the
plausible pretences found out by the great men
to procure these acts. And it may justly be
said, that by those pretences the people of
England were cheated or awed into the delivering up their ancient and sacred right of trials
by grand and petit juries. I hope to be excused
for this expression, seeing my lord Coke calls
it (4 Inst.) 'unjust and strange act, that tended
in its execution to the great displeasure of Almighty God, and the utter subversion of the
common law.'
These, I think, make out what I alleged, and
are flagrant instances of the influence of men
in power, even upon the representatives of a
whole kingdom. From all which, I hope, it
will be agreed, that it is a duty which all good
men owe to their country, to guard against the
unhappy influence of ill men when entrusted
with power, and especially against their
creatures and dependents, who, as they are
generally more necessitous, are surely more
covetous and cruel. But it is worthy of observation, that though the spirit of liberty was
borne down and oppressed in England that
time, yet it was not lost; for the parliament
laid hold of the first opportunity to free the
subject from the many insufferable oppressions
and outrages committed upon their persons and
estates by colour of these acts, the last of
which being deemed the most grievous, was
repealed in the first year of Hen. 8th. Though
it is to be observed, that Hen. 7th, and his
creatures, reaped such great advantages by the
grievous oppressions and exactions, grinding
the faces of the poor subjects, as my lord Coke
says, by colour of this statute by information
only, that a repeal of this act could never be
obtained during the life of that prince. The
other statute being the favourite law for supporting arbitrary power, was continued much
longer. The execution of it was by the great
men of the realm; and how they executed it,
the sense of the kingdom, expressed in the 7th
of Charles 1st, (by which the Court of StarChamber, the soil where informations grew
rankest) will best declare.
In that statute
Magna Charta, and the other statutes made in
the time of Edw. 3, which, I think, are no
less than five, are particularly enumerated as
acts, by which the liberties and privileges of
the people of England were secured to them,
against such oppressive courts as the StarChamber, and others of the like jurisdiction.
And the reason assigned for their pulling down
the Star-Chamber, is, That the proceedings, censures and decrees of the Court of Star-Chamber, even though the great men of the realm,
nay, and a bishop too (holy man) were judges,
had by experience been found to be an intolerable burthen to the subject, and the means to
introduce an arbitrary power and government.
And therefore that court was taken away, with
all the other courts in that statute mentioned,
having like jurisdiction.
I do not mention this statute, as if by the
taking away the Court of Star-Chamber, the
remedy for many of the abuses or offences
censured there, was likewise taken away; no,
I only intend by it to shew, that the people of
England saw clearly the danger of trusting
their liberties and properties to be tried, even
by the greatest men in the kingdom, without
the judgment of a jury of their equals. They
had felt the terrible effects of leaving it to the
judgment of these great men to say what was
scandalous and seditious, false or ironical. And
if the parliament of England thought this
power of judging was too great to be trusted
with men of the first rank in the kingdom,
without the aid of a jury, how sacred soever
their characters might be, and therefore restored to the people, their original right of trial
by juries, I hope to be excused for insisting,
that by the judgment of a parliament, from
whence no appeal lies, the jury are the proper
judges of what is false at least, if not of what is
scandalous and seditious. This is an authority,
not to be denied, it is as plain as it is great,
and to say, that this act indeed did restore to
the people trials by juries, which was not the
practice of the Star-Chamber, but that it did
not give the jurors any new authority, or any
right to try matters of law, I say this objection
will not avail; for I must insist, that where
matter of law is complicated with matter of
fact, the jury have a right to determine both.
As for instance; upon indictment for murder,
the jury may, and almost constantly do, take
upon them to judge whether the evidence will
amount to murder or manslaughter, and find
accordingly; and I must say, I cannot see,
why in our case the jury have not at least as
good a right to say, whether our news-papers
are a libel or no libel, as "another jury has to
say, whether killing of a man is murder or
manslaughter. The right of the jury to find
such a verdict as they in their conscience do
think is agreeable to their evidence, is supported by the authority of Bushel's case,* in
Vaughan's Reports, page 135, beyond any
doubt. For, in the argument of that case, the
chief-justice who delivered the opinion of the
Court, lays it down for law : (Vaughan's Rep.
p. 150.) That in all general issues, as upon
non. cul. in trespass, non tort. nul disseizin in
assize, &c. though it is matter of law, whether
the defendant is a trespasser, a disseizer, &c.
in the particular cases in issue, yet the jury,
find not (as in a special verdict) the fact of
every case, leaving the law to the Court; but
find for the plaintiff or defendant upon the
issue to be tried, wherein they resolve both law
and fact complicately. It appears by the same
case, that though the discreet and lawful assistance of the judge, by way of advice to the
jury, may be useful, yet that advice or direction
ought always to be upon supposition, and not
positive and upon coercion. The reason given
in the same book is, (page 144, 147.) Because
the judge (as judge) cannot know what the
evidence is which the jury have, that is, he
can only know the evidence given in court;
but the evidence which the jury have, may be
of their own knowledge, as they are returned
of the neighbourhood. They may also know
from their own knowledge, that what is sworn
in court is not true; and they may know the
witnesses to be stigmatized, to which the Court
may be strangers. But what is to my purpose,
is, that suppose that the Court did really know
all the evidence which the jury know, yet in
that case it is agreed, That the judge and jury
may differ in the result of their evidence, as I
well as two judges may, which often happens.
And in page 148, the judge subjoins the reason,
why it is no crime for a jury to differ in opinion from the Court, where he says, That a
man cannot see with another's eye, nor hear
by another's ear; no more can a man conclude
or infer the thing by another's understanding
or reasoning. From all which (I insist) it is
very plain, that the jury are by law at liberty
(without any affront to the judgment of the
Court) to find both the law and the fact, in our
case, as they did in the case I am speaking to,
* See it, vol. 6, p. 999.
which I will beg leave just to mention, and it
was this: Mr. Penn and Mead being Quakers,
and having met in a peaceable manner, after
being shut out of their meeting-house, preached in Grace-Church-street in London, to the
people of their own persuasion, and for this they
were indicted; and it was said, That they with
other persons, to the number of 300, unlawfully
and tumultuously assembled, to the disturbance
of the peace, &c. To which they pleaded,
Not Guilty. And the petit jury being sworn to
try the issue between the king and the prisoners, that is, whether they were guilty, according to the form of the indictment? Here
there was no dispute but they were assembled
together, to the number mentioned in the indictment; but, whether that meeting together
was riotously, tumultuously, and to the disturbance of the peace? was the question. And
the Court told the jury it was, and ordered the
jury to find it so; for (said the Court) the meeting was the matter of fact, and that is confessed, and we tell you it is unlawful, for it is
against the statute; and the meeting being unlawful, it follows of course that it was tumultuous, and to the disturbance of the peace. But
the jury did not think fit to take the Court's
word for it, for they could neither find riot, tumult, or any thing tending to the breach of the
peace committed at that meeting; and they
acquitted Mr. Penn and Mead.* In doing of
which they took upon them to judge both the
law and the fact; at which the Court (being
themselves true courtiers) were so much offended, that they fined the jury 40 marks apiece, and committed them till paid. But Mr.
Bushel, who valued the right of a juryman and
the liberty of his country more than his own,
refused to pay the fine, and was resolved
(though at a great expence and trouble too)
to bring, and did bring, his Habeas Corpus, to
be relieved from his fine and imprisonment, and
he was released accordingly; and this being
the judgment in his case, it is established for
law, That the judges, how great soever they
be, have no right to fine, imprison, or punish a
jury, for not finding a verdict according to the
direction of the Court. And this, I hope, is
sufficient to prove, that jurymen are to see
with their own eyes, to hear with their own
ears, and to make use of their own consciences
and understandings in judging of the lives, liberties, or estates of their fellow subjects. And
so I have done with this point.
This is the second information, for libelling
of a governor, that I have known in America.
And the first, though it may look like a romance, yet, as it is true, I will beg leave to
mention it. Governor Nicholson, who happened to be offended with one of his clergy, met
him one day upon the road; and as it was
usual with him (under the protection of his
commission) used the poor parson with the
worst of language, threatened to cut off his
ears, slit his nose, and at last to shoot him
through the head. The parson, being a reve* See the Case, vol. 6, p. 951.
rend man, continued all this time uncovered in
the heat of the sun, until he found an opportunity to fly for it; and coming to a neighbour's
house, felt himself very ill of a fever, and immediately writes for a doctor; and that his
physician might be the better judge of his distemper, he acquainted him with the usage he
had received; concluding, that the governor
was certainly mad; for that no man in his
senses would have behaved in that manner.
The doctor unhappily shews the parson's letter:
The governor came to hear of it, and so an information was preferred against the poor man
for saying, He believed the governor was mad;
and it was laid in the information to be false,
scandalous and wicked, and wrote with intent to move sedition among the people, and
bring his excellency into contempt. But by
an order from the late queen Anne, there was
a stop put to the prosecution, with sundry others
set on foot by the same governor against gentlemen of the greatest worth and honour in that
government.
And may not I be allowed, after all this, to
say, that, by a little countenance, almost any
thing which a man writes, may, with the help
of that useful term of art called an innuendo,
be construed to be a libel, according to Mr. Attorney's definition of it, that whether the words
are spoke of a person of a public character, or
of a private man, whether dead or living, good
or bad, true or false, all make a libel; for according to Mr. Attorney, after a man hears a
writing read, or reads and repeats it, or laughs
at it, they are all punishable. It is true, Mr.
Attorney is so good as to allow, after the party
knows it to be a libel; but he is not so kind as
to take the man's word for it.
[Here were several cases put to shew, that
though what a man writes of a governor was
true, proper, and necessary, yet, according to
the foregoing doctrine, it might be construed to
be a libel. But Mr. Hamilton, after the trial
was over, being informed, that some of the
cases he had put had really happened in this
government, he declared he had never heard of
any such; and as he meant no personal reflections, he was sorry he had mentioned them,
and therefore they are omitted here.]
Mr. Hamilton. If a libel is understood in the
large and unlimited sense urged by Mr. Attorney, there is scarce a writing I know that
may not be called a libel, or scarce any person
safe from being called to account as a libeller:
for Moses, meek as he was, libelled Cain; and
who is it that has not libelled the Devil? For,
according to Mr. Attorney, it is no justification
to say one has a bad name. Echard has libelled our good king William; Burnet has libelled, among many others, king Charles and
king James; and Rapin has libelled them all.
How must a man speak or write, or what must
he hear, read, or sing? Or when must he
laugh, so as to be secure from being taken up
as a libeller? I sincerely believe, that were
some persons to go through the streets of New
York, now-a-days, and read a part of the
Bible, if it was not known to be such, Mr. Attorney, with the help of his innuendos, would
easily turn it into a libel. As for instance,
Is. xi. 16. "The leaders of the people cause
them to err, and they that are led by them are
destroyed." But should Mr. Attorney go
about to make this a libel, he would read it
thus: 'The leaders of the people' [innuendo,
the governor and council of New-York] 'cause
them' [innuendo, the people of this province]
to err, and they' [the governor and council
meaning] 'are destroyed' [innuendo, are deceived into the loss of their liberty]; which is
the worst kind of destruction. Or if some
persons should publicly repeat, in a manner
not pleasing to his betters, the 10th and the
11th verses of the 56th chap. of the same book,
there Mr. Attorney would have a large field to
display his skill, in the artful application of his
innuendos. The words are; 'His watchmen
are blind, they are ignorant, &c. Yea, they
are greedy dogs, that can never have enough.'
But to make them a libel, there is, according
to Mr. Attorney's doctrine, no more wanting
but the aid of his skill, in the right adapting
his innuendos. As tor instance; 'His watchmen' [innuendo, the governor's council and
assembly] ' are Wind, they are ignorant,'
[innuendo, will not see the dangerous designs
of his excellency.]
'Yea, they' [the governor and council meaning] 'are greedy
dogs, which can never have enough' [innuendo, enough of riches and power.] Such an
instance as this seems only fit to be laughed
at; but I may appeal to Mr. Attorney himself, whether these are not at least equally
proper to be applied to his excellency, and his
ministers, as some of the inferences and innuendos in his information against my client.
Then if Mr. Attorney is at liberty to come into
court, and file an information in the king's
name, without leave, who is secure, whom be
is pleased to prosecute as a libeller? And as
the crown law is contended for in bad times,
there is no remedy for the greatest oppression
of this sort, even though the party prosecuted
is acquitted with honour. And give me leave
to say, as great men as any in Britain have
boldly asserted, that the mode of prosecuting
by information (when a grand jury will not
find Billa vera) is a national grievance, and
greatly inconsistent with that freedom which
the subjects of England enjoy in most other
eases. But if we are so unhappy as not to be
able to ward off this stroke of power directly,
let us take care not to be cheated out of our
liberties by forms and appearances; let us
always be sure that the charge in the information is made out clearly, even beyond a
doubt; for though matters in the information
may be called form upon trial, yet they may
be, and often have been found to be, matters
of substance upon giving judgment.
Gentlemen, the danger is great, in proportion to the mischief that may happen through
our too great credulity. A proper confidence
in a court is commendable; but as the verdict
(whatever it is) will be yours, you ought to
refer no part of your duty to the discretion of
other persons. If you should be of opinion,
that there is no falsehood in Mr. Zenger's
papers, you will, nay, (pardon me for the expression) you ought to say so; because you.
don't know whether others (I mean the Court)
may be of that opinion. It is your right to do
so, and there is much depending upon your
resolution, as well as upon your integrity.
The loss of liberty, to a generous mind, is
worse than death; and yet we know there
have been those in all ages, who, for the sake
of preferment, or some imaginary honour, have
freely lent a helping hand to oppress, nay, to
destroy their country. This brings to my
mind that saying of the immortal Brutus,
when he looked upon the creatures of Caesar,
who were very great men, but by no means
good men: " Y o u Romans," said Brutus,
"if yet I may call you so, consider what you
are doing; remember that you are assisting
Cæsar to forge those very chains, which one
day he will make yourselves wear." This is
what every man (that values freedom) ought
to consider: he should act by judgment, and
not by affection or self-interest; for where
those prevail, no ties of either country or kindred are regarded; as upon the other hand,
the man who loves his country, prefers its
liberty to all other considerations, well knowing that without liberty life is a misery.
A famous instance of this you will find in the
history of another brave Roman, of the same
name; I mean Lucius Junius Brutus, whose
story is well known; and therefore I shall
mention no more of it, than only to shew the
value he put upon the freedom of his country.
After this great man, with his fellow-citizens,
whom he had engaged in the cause, had
banished Tarquin the Proud, the last king of
Rome, from a throne which he ascended by
inhuman murders, and possessed by the most
dreadful tyranny and proscriptions, and had by
this means amassed incredible riches, even
sufficient to bribe to his interest many of the
young nobility of Rome, to assist him in recovering the crown; but the plot being discovered, the principal conspirators were apprehended, among whom were two of the sons
of Junius Brutus. It was absolutely necessary
that some should be made examples of, to deter
others from attempting the restoring of Tarquin, and destroying the liberty of Rome.
And to effect this it was, that Lucius Junius
Brutus, one of the consuls of Rome, in the
presence of the Roman people, sat judge, and
condemned his own sous, as traitors to their
country : and to give the last proof of his exalted virtue, and his love of liberty, he with a
firmness of mind, (only becoming so great a
man) caused their heads to be struck off in
his own presence; and when he observed that
his rigid virtue occasioned a sort of horror
among the people, it is observed he only said:
"My fellow-citizens, do not think that this
proceeds from any want of natural affection:
No, the death of the sons of Brutus can affect
Brutus only; but the loss of liberty will affect
my country." Thus highly was liberty esteemed in those days, that a father could sacrifice his sons to save his country. But why
do I go to heathen Rome, to bring instances
of the love of liberty? The best blood in Britain has been shed in the cause of liberty; and
the freedom we enjoy at this day, may be said
to be (in a great measure) owing to the glorious stand the famous Hampden, and others
of our countrymen, in the Case of ShipMoney,* made against the arbitrary demands,
and illegal impositions, of the times in which
they lived; who, rather than give up the rights
of Englishmen, and submit to pay an illegal
tax of no more, I think, than three shillings,
resolved to undergo, and, for the liberty of
their country, did undergo the greatest extremities in that arbitrary and terrible court of
Star-Chamber; to whose arbitrary proceedings
(it being composed of the principal men of the
realm, and calculated to support arbitrary government) no bounds or limits could be set,
nor could any other hand remove the evil but a
parliament.
Power may justly be compared to a great
river; while kept within its due bounds, it is
both beautiful and useful; but when it overflows its banks, it is then too impetuous to be
stemmed; it bears down all before it, and brings
destruction and desolation wherever it comes.
If then this is the nature of power, let us at
least do our duty, and like wise men (who value freedom) use our utmost care to support
liberty, the only bulwark against lawless power,
which, in all ages, has sacrificed to its wild
lust, and boundless ambition, the blood of the
best men that ever lived.
I hope to be pardoned, Sir, for my zeal upon
this occasion: it is an old and wise caution,
"That when our neighbour's house is on fire,
we ought to take care of our own." For though,
blessed be God, I live in a government where
liberty is well understood, and freely enjoyed;
yet experience has shewn us all (I'm sure it
has to me), that a bad precedent in one government, is soon set up for an authority in another; and therefore I cannot but think it mine,
and every honest man's duty, that (while we
pay all due obedience to men in authority) we
ought at the same time to be upon our guard
against power, wherever we apprehend that it
may affect ourselves or our fellow-subjects.
I am truly very unequal to such an undertaking, on many accounts. And you see I labour under the weight of many years, and am
borne down with great infirmities of body; yet
old and weak as I am, I should think it my
duty, if required, to go to the utmost part of
the land, where my service could be of any
use, in assisting to quench the flame of prosecutions upon informations, set on foot by the
government, to deprive a people of the right of
remonstrating, (and complaining too) of the
arbitrary attempts of men in power. Men who
injure and oppress the people under their ad* See it in this Collection, vol. 3. p. 826.
ministration, provoke them to cry out and complain; and then make that very complaint the
foundation for new oppressions and prosecutions. I wish I could say there were no instances of this kind. But to conclude; the
question before the Court, and you, gentlemen
of the jury, is not of small nor private concern;
it is not the cause of a poor printer, nor of New
York alone, which you are now trying: No!
It may, in its consequence, affect every freeman that lives under a British government on
the main of America. It is the best cause; it
is the cause of liberty; and I make no doubt
but your upright conduct, this day, will not
only entitle you to the love and esteem of your
fellow-citizens; but every man, who prefers
freedom to a life of slavery, will bless and honour you, as men who have baffled the attempt
of tyranny; and, by an impartial and uncorrupt verdict, have laid a noble foundation for
securing to ourselves, our posterity, and our
neighbours, that to which nature and the laws
of our country have given us a right — the liberty — both of exposing and opposing arbitrary
power (in these parts of the world, at least) by
speaking and writing truth.
Here Mr. Attorney observed, that Mr. Hamilton had gone very much out of the way,
and had made himself and the people very
merry; but that he had been citing cases not
at all to the purpose. He said, there was no
such cause as Mr. Bushel's, or sir Edward
Hale's, before the Court; and he could not
find out what the Court or Jury had to do with
dispensations, riots, or unlawful assemblies:
all that the jury had to consider of, was Mr.
Zenger's printing and publishing two scandalous libels, which very highly reflected on his
excellency, and the principal men concerned
in the administration of this government, which
is confessed; that is, the printing and publishing of the Journals set forth in the information
is confessed. And concluded, that as Mr.
Hamilton had confessed the printing, and there
could be no doubt but they were scandalous
papers, highly reflecting upon his excellency,
and the principal magistrates in the province;
and therefore he made no doubt hut the jury
would find the defendant guilty, and would refer to the Court for their direction.
Mr. Chief Justice. Gentlemen of the jury,
the great pains Mr. Hamilton has taken to shew
how little regard juries are to pay to the opinion
of the judges, and his insisting so much upon the
conduct of some judges in trials of this kind, is
done, no doubt, with a design that you should
take but very little notice of what I may say
upon this occasion. I shall therefore only observe to you, that, as the facts or Words in the
information are confessed, the only thing that
can come in question before you is, whether
the words, as set forth in the information, make
a libel; and that is a matter of law, no doubt,
and which you may leave to the Court. But
I shall trouble you no further with any thing
more of my own; but read to you the words
of a learned and upright judge, in a case of the
like nature. [Lord Chief Justice Holt, in
Tutchin's Case.*]
"To say that corrupt officers are appointed
to administer affairs, is certainly a reflection on
the government. If people should not be called
to account for possessing the people with an ill
opinion of the government, no government can
subsist; for it is necessary for all governments
that the people should have a good opinion of
it; and nothing can be worse to any government, than to endeavour to procure animosities.
As to the management of it, this has been always looked upon as a crime, and no government can be safe without it be punished."
Now you are to consider, whether these
words I have read to you do not tend to beget
an ill opinion of the administration of the government; to tell us, that those that are
employed know nothing of the matter, and
those that do know are not employed. Men
are not adapted to offices, but offices to men,
out of a particular regard to their interest, and
not to their fitness for the places. This is the
purport of these papers.
Mr. Hamilton. I humbly beg your honour's
pardon; I am very much misapprehended, if
you suppose what I said was so designed.
Sir, you know I made an apology for the
freedom I found myself under a necessity of
using upon this occasion. I said, there was
nothing personal designed; it arose from the
nature of our defence.
The Jury withdrew, and in a small time returned; and being asked by the clerk,
Whether they were agreed of their verdict,
and whether John Peter Zenger was Guilty of
printing and publishing the libels in the information mentioned?
They answered, by Thomas Hunt, their
foreman, Not Guilty.
Upon which there were three huzzas in the
Hall, which was crowded with people; and
the next day I was discharged from my imprisonment.
City of New York, ss.
At a Common Council, held at the City-hall
of the said city, on Tuesday the 16th
day of September, A. D. 1735. — PRESENT,
Paul Richards, esq. Mayor; Gerardus
Stuyvesant, esq. Deputy Mayor; Daniel
Horsemanden, esq. Recorder. — Aldermen,
William Roome, esq. Simon Johnson, esq.
John Walter, esq. Christopher Fell, esq.
Stephen Bayard, esq. Johannes Burger,
esq. — Assistants, Mr. Johannes Waldron,
Mr. Ede Myer, Mr. John Moore, Mr.
John Fred, Mr. Charles Le Roux, Mr.
Evert Byvank.
Ordered, That Andrew Hamilton, esq. of
Philadelphia, barrister at law, be presented
with the Freedom of this Corporation: and that
alderman Bayard, alderman Johnson, and al* See his Case, vol. 14, p. 1095.
derman Fell, be a Committee to bring in a
draught thereof.
City of New York, ss.
At a Common Council, held at the City-hall
of the said city, on Monday the 29th day
of September, being the feastday of St.
Michael the Archangel, A. D. 1735. —
PRESENT, Paul Richards, esq. Mayor;
Daniel Horsemanden, esq. Recorder. — Aldermen, William Roome, esq. Simon
Johnson, esq. John Walter, esq. Christopher Fell, esq, Stephen Bayard, esq.
Johannes Burger, esq. — Assistants, Mr,
Johannes Waldron, Mr. John Fred, Mr.
Charles le Roux, Mr. Evert Byvank,
Mr. Henry Bogert.
Stephen Bayard, Simon Johnson, and Christopher Fell, esqrs. aldermen, to whom it was
referred to prepare the draught of the Freedom
of this Corporation, to be presented to Andrew
Hamilton, esq. make the Report thereon in the
words following, (to wit) That they have prepared the form of the grant to the said Andrew
Hamilton, esq. of the Freedom of the city of
New York, in these words, (to wit.)
"City of New York, ss.
"Paul Richards, esq. the Recorder, Aldermen , and Assistants of the city of New York, convened in Common Council, to all to whom these
presents shall come greeting. Whereas honour
is the just reward of virtue, and public benefits
demand a public acknowledgment: We therefore, under a grateful sense of the remarkable
service done to the inhabitants of this city and
colony by Andrew Hamilton, esq. of Pennsylvania, barrister at law, by his learned and
generous defence of the rights of mankind, and
the liberty of the press, in the case of John
Peter Zenger, lately tried on an information
exhibited in the supreme court of this colony,
do, by these presents, bear to the said Andrew
Hamilton, esq. the public thanks of the freemen of this Corporation for that signal service,
which he cheerfully undertook under great
indisposition of body, and generously performed,
refusing any fee or reward : and in testimony
of our great esteem for his person, and sense of
his merit, do hereby present him with the
Freedom of this Corporation. These are therefore to certify and declare, that the said Andrew Hamilton, esq. is hereby admitted, received, and allowed a freeman and citizen of
the said city: to have, hold, enjoy, and partake
of all the benefits, liberties, privileges, freedoms
and immunities whatsoever, granted or belonging to a freeman and citizen of the same city.
In testimony whereof, the Common Council
of the said city, in Common Council assembled, have caused the seal of the said city
to be hereunto affixed, this 29th day of September, A. D. 1735. By order of the Common Council.
WILLIAM SHARPAS, Clerk.
"And we do further report, that sundry of
the members of this corporation, and gentlemen
REMARKS
of this city, have voluntarily contributed suffiON
THE
TRIAL
OF JOHN PETER ZENcient for a gold-box of five ounces and a half,
for inclosing the seal of the said freedom; upon
GER, PRINTER OF THE NEW YORK
the lid of which, we are of opinion, should be
WEEKLY JOURNAL, WHO WAS
engraved the arms of the city of New-York.
LATELY TRIED AND ACQUITTED, FOR
Witness our hands this 29th day of Sept. 1735.
STEPHEN BAYARD.
PRINTING AND PUBLISHING TWO LISIMON JOHNSON.
BELS AGAINST THE GOVERNMENT OF
CHRISTOPHER FELL."
THAT PROVINCE.†
Which Report is approved by this Court, and
Sir; It has been a common remark among
ordered, That the Freedom and Box be forthwith
made, pursuant to the said Report; and that those who have observed upon the capricious
Mr. Sbarpas, the common clerk of this city, do dispensation's of fortune, that great events are
affix the seal of the same Freedom, and inclose
pers, &c. by The Father of Candour;" which
it in the said Box.
has been ascribed to Lord Chancellor Camden,
Mr. Alderman Bayard going to Philadelphia, and also to Lord Ashburton, it is noticed that the
and offering to be the bearer, of the said Free- Preface to Zenger's Trial contains many things
dom to Mr. Hamilton; Ordered, That Mr. very well worth reading.
Sharpas deliver it to Alderman Bayard for that
† "These Remarks were written by two
purpose; and that Alderman Bayard do deliver
it to Mr. Hamilton, with assurances of the eminent lawyers in one of our colonies in
great esteem that this corporation have for his America, immediately after the publication of
the Trial of Mr. Zenger, which it seems had
person and merit.
been industriously spread over that part of the
world, before it reached England.
City of New York, ss.
"As the doctrines contained in that trial, or
At a Common Council, held at the City hall of rather in the speech of Mr. Hamilton, are of
the said city, on Wednesday the 15th day so new a cast, and so absolutely contradictory
of October, A. D. 1735. — PRESENT, Paul to all the resolutions and judgments that have
Richards, esq. Mayor; Daniel Horse- been settled and established for so many ages,
manden, esq. Recorder. — Aldermen, John and by judges of the highest reputation, and
Walter, esq. Simon Johnson, esq. William most unquestionable characters, for their inRoome, esq. Johannes Burger, esq. — As- tegrity, virtues and abilities, it could not be
sistants, Mr. Johannes Waldron, Mr. imagined so wild and idle an harangue could
Abraham De Peyster, Mr. Gerardus Beek- have had any weight, or have met with any
man, Mr. Peter Stoutenburgh, Mr. Henry reception here, where the laws relating to libels
Bogert.
have been so often canvassed, and are generally
so well understood; and therefore the person
Ordered, That the Freedom granted by this to .whom these Remarks were sent, never
Corporation to Andrew Hamilton, esq. with thought of making any other use of them than
the Report of the Committee for preparing a to satisfy his own curiosity, and that of his
draught of the same, and the order of this court friends.
thereon, may be printed.
WM. SHARPAS.
"But seeing, to his great surprize, that this
Round on the lid of the box, mentioned in the extraordinary declamation has been mentioned
abovesaid Report and Order, there are engraved with an air of applause and triumph in several
not only the arms of the city of New York, news-papers, as striking out some new lights
but also this motto in a garter; "Demersæ with regard to the doctrine of libels; and, upon
Leges — timefacta Libertas — hæc tandem emer- the credit of that recommendation, the whole
Trial not only twice printed here, but retailed
gunt."
On the inner side of the lid of the box, shew- out in scraps in the public news-papers, whereby
ing itself at the same time with the certificate many well meaning people may be deceived,
of the freedom, there are engraven, in a flying and led into wrong notions concerning the
garter, these words; "Non nummis, Virtute laws of their country in this point: He has
thought fit to communicate these Remarks to
paratur."
As an incentive to public virtue, on the front the public, in order to remove any mistakes or
of the rim of the said box, there is engraven a errors that persons may fall into for want of
part of Tully's wish; "Ita cuique eveniat, ut an adequate judgment in these matters; and
the rather, because if such false opinions
de republica meruit."
, Which Freedom and Box were presented in should happen to influence the conduct or
the manner that had been directed, and gratefully practice of any, the consequences may be very
dangerous; it being an established maxim in
accepted by the said Andrew Hamilton, esq.*
our law, that neither ignorance nor mistake is
* In the celebrated Tract, intitled, "A Letter an excuse to any one who has broke it, from
concerning Libels, Warrants, Seizure of Pa- the penalty of it." Preface to the Remarks,
often produced by instruments that are not a vain itch of writing; for there are no extraseemingly adequate; nay, that the same ap- ordinary talents necessary for refuting gross
parent causes have quite contrary effects; and absurdities; but I shall have the honest merit
the road that leads one man to wealth, honour, of endeavouring to undeceive such of my fellowand power, sometimes carries another to po- subjects in the plantations as may, from the
verty, infamy, and ruin. Hence comes that late uncommon success of the doctrine, mistake
confused distribution of axes and coronets, the liberty of the press for a licence to write
halters and ribbons, which history displays by and publish infamous things of their superiors,
numerous shocking examples; and thus it is, and of all others, at their pleasure, provided
that fate seems to play at cross-purposes with they write and publish nothing but what is
mankind; or to speak in Scripture-phrase, in true. In the next place, I would preserve, as
this sense as well as many others, "the wisdom far as I am able, the dignity of the profession of
of this world is foolishness."
the law in these remote parts of the British doI find myself drawn into these grave reflec- minions; and prevent its learned professors in
tions, by reading the Trial of John Peter England, who probably wilt see the renowned
Zenger, at New-York, upon an information for piece above mentioned (if we may judge from
printing and publishing a libel. This piece, the industry used in dispersing it), from susit seems, has been lately printed there, and was pecting that all their American brethren use
put into my hand the other day by a friend, the like arts 1o gain popularity and honourable
who has both a general acquaintance and a rewards. The former, having the advantage
correspondence with the northern colonies, as of going daily to the great school of law at
a rare production, containing many things new Westminster, are already apt enough to think
and surprising. And, in truth, I must say it meanly of the accomplishments of the latter,
affords a lively specimen, in miniature, of the who are far removed from instruction; and
justness of the foregoing remarks: I mean that their opinion must be strongly confirmed in this
part of it which is attributed to Andrew respect, if such a rhapsody, as was uttered at
Hamilton, esq. of Philadelphia, barrister at New-York, should not only be applauded and
law; together with the sequel, describing the rewarded publicly there, but printed and scatmunificent behaviour of the citizens, in com- tered in reams through the other colonies, withmon council assembled, to the learned gen- out being followed by a suitable animadversion.
tleman, for his singular performance on that
Neither will it be amiss to take some notice,
occasion.
in this place, of the quackery of the profession
I must at the same time assure you, that if in general, without any particular application,
Zenger's trial had been printed by order of the as it has been practised with vast success in
Court that tried him, or from a copy taken by some of our colonies. You will often see (if
a private hand at the trial, or by any other common fame may be trusted) a self-sufficient
means that excluded Mr. Hamilton's approba- enterprising lawyer, compounded of something
tion or privity, I should have enjoyed my own between a politician and a broker, who, making
opinion without troubling you or any body else the foibles of the inhabitants his capital study,
about it, and had the charity to resolve all the and withal taking advantage of the weakness
extravagancies that occur throughout his de- of his judges, the ignorance of some of his
clamation, into a right discernment of the brethren, the modesty of others, and the honest
people he talked to, and a dexterity in capti- scruples of a third sort (without having any of
vating them, which had its effect in the ac- his own), becomes insensibly an oracle in the
quittal of his client. But when a gentleman courts, and acquires by degrees a kind of doof the bar takes the pains to write over a long minion over the minds, as well as the estates of
discourse (he being the only lawyer, of either the people; an influence never to be obtained
side, who gave the printer his notes), in order but by the help of qualities very different from
to send it abroad through the world, as a speci- learning and integrity. Whenever such a man
men of his abilities, sentiments and principles; is found, the wonder is not great, if, from a
as a solemn argument in the law, fit to see the long habit of advancing what he pleases, and
light, and abide the test in all places; and, having it received for law, he comes in time to
above all, as a task of duty, which he thought fancy that what he pleases to advance is really
himself bound to perform, even by going to law.
the utmost parts of the land for the purpose;
I have taken the pains, during this short vaand all this, without fee or reward, under the cation between our monthly courts, candidly to
weight of many years, and great infirmities of examine this new system of libels, lately combody : When a barrister, I say, thus becomes posed and propagated on the continent; the
a volunteer for error, and presumes to obtrude discovery of which cost the good city of Newbad law and false reasoning upon the sense of York five ounces and a half of gold, a scrip of
mankind, because the sage magistrates of parchment, and three Latin sentences. My inNew-York have put their seal to it; I think tention is to consider things, not persons,
myself at liberty, without using any other having no other knowledge of the gentleman
apology, to exercise the judging privilege of a principally concerned, than what is derived
reader, since the gentleman himself has put from the paper now before me; and being
me into the possession of it.
wholly a stranger to the merit of those disputes
In doing this, I shall not in the least gratify that gave rise to the prosecution of this printer.
Much less shall I turn advocate for any
lawless power in governors; God forbid I should
be guilty of such a prostitution, who know by
experience of what stuff they are commonly
made: the wrong impressions they are apt to
receive of themselves and others; their passions, prejudices, and pursuits; though when
all reasonable allowances are made for certain
circumstances that attend their mission from
home, and their situation abroad, a considerate
person may be tempted to think — it is well they
are no worse than they are.
But to come to my remarks on Mr. Zenger's
trial.
In considering the Defence made for the defendant (Mr. Zenger) by his counsel (Mr. Hamilton), upon Not Guilty pleaded to an information for printing and publishing a libel,
it is not to the purpose to inquire how far the
matters charged in the information are in their
nature libellous; nor whether the innuendoes
are properly used, to apply the matters to persons, things and places. It is only necessary
to examine the truth of this single proposition,
upon which the whole Defence is grounded,
and to which the several parts of it refer;
namely, That the several matters charged in
the information are not, and cannot be libellous,
because they are true in fact.
This is the cardinal point upon which the
learned gentleman's whole argument turns,
and which he lays down, over and over,
as the first principle that governs the doctrine of libels; and accordingly he confesses
the printing and publishing of the papers
laid in the information, and puts it upon the
king's counsel to prove the facts contained in
them to be false; alleging, at the same time,
that, unless that were done, the defendant
could not be guilty; but if the same were
proved to be false, he would own the papers
containing them to be libels. To this, it seems
the Attorney General answered, that a negative is not to be proved; and the other replied
in these words, which I choose to set down,
that I may not be thought to do him wrong —
"I did expect to hear that a negative cannot be
proved; but every body knows, there are
many exceptions to that general rule: For if a
man is charged with killing another, or stealing his neighbour's horse; if he is innocent
in the one case, he may prove the man said to
be killed to be still alive; and the horse said to
be stolen never to have been out of bis master's
stable, &c. and this, I think, is proving a negative." Now, I must think, that it is strange a
gentleman of his sagacity, who owns he was
prepared for the objection, could not yet hit
upon some of these many exceptions which
every body knows; for he does no more than
give two instances of one affirmative being destroyed by another, that infers a negative of the
first; at which rate most negatives may be
proved, and then the old rule may be discarded. Thus, if it is shewn that a man is alive,
it follows clearly that he was not killed; and
if a horse is proved to have been always in
his master's stable (for this is what must be
understood of his being never out of the stable),
it certainly follows that he could not be stolen.
So that, according to this new scheme of proof,
he who is accused of killing a man, or stealing
an horse, is to be put upon proving that he
did not kill or steal, because it is possible that
such proof may be had sometimes : And so,
in the principal case, if a question arises whether a certain magistrate has done particular
acts of injustice or not, the method is to shew
that he did not do such acts, not that he did
them. I have touched upon this, not for its
importance, but as a specimen of the learned
barrister's manner of reasoning, and of the
spirit with which he sets out from the begining.
At length however he takes the onus probandi upon himself; and rather than the thing
should go unproved, generously undertakes,
at his client's peril, to prove the matters, charged
in the information as libellous, to be true. But
I would be glad to know, by the way, how this
undertaking gentleman could have proved the
truth of divers facts contained in the paper which
the defendant published, supposing the Court
had been so much overseen as to let him into a
proof of this sort. Could he prove for example, that judges were arbitrarily displaced,
and new courts erected, in the province of
New York, without consent of the legislature?
For, I am credibly informed, there never was a
pretence or surmise of more than one judge
being displaced, or more than one court erected,
under Mr. Cosby's administration, both which
happened upon one and the same occasion.
Now I would not have this esteemed a captious
exception, when I have to deal with a man of
law, who must or ought to know, that, if such
a justification as he offered were at all allowable, it ought to be full and express, so as to
leave no room for a libeller to multiply and exaggerate facts at his pleasure, when he is disposed to traduce persons in authority; there
being a manifest difference between a single
act of power without or against law (from
which perhaps few governments have been
free), and an habitual abuse of power in repeated instances of the same species. I would
further ask, how he could prove, that the law
itself was at an end, and that trials by juries
were taken away when a governor pleased;
for, if I mistake not, he was at that time speaking to a jury in a regular court of law, and in a
prosecution which the governor had much at
heart (as the gentleman himself insinuates),
and would have been highly pleased to convict his client; yet would not attempt it, but
in the ordinary course of trial by a jury; and
then too, could not find a jury that would convict him. I think I am warranted in putting
these questions, even by the authority of the
barrister himself, who says, "Truth ought to
govern the whole affair of libels, and yet the
party accused runs risk enough even then; for
if he fails of proving every tittle he has wrote,
and to the satisfaction of the court and jury
too, he may find to his cost," &c.
But for the present, I will suppose Mr.
Hamilton was able to prove all these things;
nay, that the jury knew them all to be true. I
will go further, and allow, that juries in criminal cases may determine both law and fact,
when they are complicated, if they will take
such a decision upon their consciences (which
is almost the only point in which I can have the
honour of agreeing with him); yet, after all
these concessions, the main question rests still
between us, viz. Whether a writing can be a
libel, in legal acceptation, if the matter contained in it be true? He is pleased, indeed, to
express his dislike of infamous papers, even
when they are true, if levelled against private
vices and faults; and in this case he calls them
base, unworthy, scandalous, unmanly and unmannerly. But surely it might be expected,
when a point of law was in question, that he
would have told us, whether they were lawful
or unlawful, innocent, or criminal, since these
last are the only epithets that were relative to
his subject, though the first might have their
weight in a sermon or moral essay.
But, it is
plain, he was aware of the consequence of being explicit upon this head; for had he owned
such writings to be lawful, because true, he
would have alarmed the common sense of mankind, by opening a door for exposing at mercy
the frailties, vices, defects and misfortunes of
every person, high and low, which must inevitably destroy the peace of families, and beget ill blood and disorders. If, on the other
hand be had acknowledged such writings to be
unlawful, inasmuch as they concerned private
miscarriages and transactions; hut that every
man might write as much truth as be pleased
about the administration of the government,
not only by pointing out faults and mistakes,
but by publishing bis own comment and inferences, in order to fill the minds of the people
with all the jealousies and apprehensions his
imagination can form; it must have shocked
men of understanding to be thus told, that the
law bad provided against private quarrels and
breaches of the peace, occasioned by virulent
writing; but had taken no care to prevent sedition and public disturbance arising from the
same cause.
His favourite position, however, was to be
maintained at all events; and therefore, when
the Chief-justice rightly instructed him, that he
could not be admitted to give the truth of a
libel in evidence, that the law was clear that he
could not justify a libel; for it is nevertheless a
libel, though it is true; the discerning gentleman was pleased to understand by the word
justify, a justification by plea, as it is in the case
of an indictment for murder, or an assault and
battery: there (says he) the prisoner cannot
justify, but plead Not Guilty; yet in murder,
he may prove it was in defence of his life, his
house, &c. and in assault and battery, he may
ive in evidence, that the other party struck
first; and in both these cases he will be acquitted.
If the party in either case is acquitted, the
f
reason is, I presume, because the matter given
in evidence amounts to a justification in law of
the fact charged on him, and is equivalent to a
confession and avoidance in pleading. In like
manner, if truth be a sufficient justification of
a libel, the defendant will be acquitted upon
proving the contents of his paper to be true.
Now let it be observed, that the words of the
book which the chief-justice relied on are
these: — — It is far from being a justification of
a libel, that the contents thereof are true —
since the greater appearance there is of truth
in any malicious invective, so much the more
provoking it is. That this is good law, I hope
I shall be able to shew fully hereafter, as I
shall shew, in the mean time, that it is an express authority against the well-read barrister,
who declares, he has not in all his reading met
with an authority that says, he cannot be admitted to give the truth in evidence, &c.
He seems to take it for granted (and I shall
not dispute it with him now) that matter of
justification cannot, in any case, be pleaded
specially to an indictment of assault or murder;
but the party is to take advantage of it in evidence upon Not Guilty pleaded. Let it be so;
yet still this matter must be a sufficient justification, or the party can have no benefit from it
any way. In an action of assault and battery,
where the first assault must be pleaded specially; the matter of justification is just the
same, as in an indictment for the same offence,
where it must be given in evidence upon the
general issue. I ask then, Whether the first
assault is a justification in an indictment of
assault and battery? If the barrister should
answer negatively, such answer is against all
sense, for the party is acquitted by virtue of
the justification only. If he should answer affirmatively, he is inconsistent with himself;
for he has but just affirmed that when the book
says, truth is no justification, it must be understood of a justification by plea, by which he
must mean that nothing else is a justification
but what is pleaded, or he must mean nothing
at all. For the words of the book are — it is
far from being a justification, &c. it is not said,
— you are far from being at liberty to plead it
in bar. In truth, the author is not there speaking of the forms and rules of proceedings upon
libels, (1 Hawk. chap. 73, § 5, 6, 7,) but upon
the substance and nature of the crime, what
shall and what shall not excuse or justify it.
This is manifest from the reason subjoined to
support his assertion, viz. Since the greater appearance there is of truth, &c. which is a solid
reason grounded on the wisdom of the law,
which punishes libels even against private persons, as public offences, because they provoke
men to acts of revenge and breaches of the
peace. I hope it will not be said that a libel is
less provoking, because the truth of it is to be
given in evidence, than if it was to be pleaded
in bar.
But all this is Star-chamber doctrine with
the barrister, and the very mention of that
court serves him for an answer to every thing,
for which he has no other answer; because the
memory of that tribunal is justly detested on
account of many illegal and exorbitant proceedings. No; this is the authority of Mr.
serjeant Hawkins (though he uses marginal
references to some Star-chamber cases), whose
name is too great to receive any addition from
this paper, and who, after a long and studious
search in the crown-law, laid down this proposition for law at the time he wrote his book;
and I believe it will appear in the sequel that
he was not mistaken. And now I come to join
issue with the barrister upon this point, whether Mr. Serjeant or he is in the right; or, in
other words, whether falsity in fact be essential to a libel, so that the truth of the fact may
be given in evidence to prove a writing to be no
libel.
He maintains the affirmative of the question,
both from what he understands to be the authorities in the case, and from the reason of
the thing. All which shall be considered in
their older.
The authorities cited by Mr. Hamilton to
support the proposition formerly stated, consist
principally of four cases, which I shall consider
in the order as they were produced.
The first is the case of John de Northampton, 18 Edw. 3, 3 Inst. 174, which he observes does not appear to have been a case upon
an information, but that he has good grounds
to say it was upon an indictment. This is
what I shall not contest with him, because it is
not material, or indeed easy to be determined,
without seeing the record; though I conceive
there are grounds to say it was not upon an indictment, as was the case of Adam de Ravensworth, mentioned by lord Coke in the same
chapter. The case, however, stands thus:
'John de Northampton, an attorney of the
King's-bench, wrote a letter to one Ferrers,
one of the king's council, that neither sir William Scot, a chief justice, nor his fellows the
king's justices, nor their clerks, any great
thing would do by the commandment of our
lord the king, &c. which said John being
called, confessed the letter, &c. Et quia
prædictus Johannes cognovit dictam literam per se scriptam Roberto de Ferrers,
qui est de concilio Regis, quæ litera continet
in se nullam veritatem: Prætextu cujus Dom.
Rex erga Curiam et Justiciarios suos habere
posset indignationem, quod esset in scandalum Justic. et Curiæ. Ideo dictus Johannes
committitur, &c.' Here says the barrister,
by this judgment it appears the libellous words
were utterly false, and there the falsehood was
the crime, and is the ground of the judgment.
For my own part, I can neither see truth nor
falsehood in the words at the time they were
wrote, for they refer to a future contingency
that might, or might not be as he said; and in
this respect, they were the same as if the man
had said, the roof of Westminster-hall would
fall upon sir William Scot and his fellows. Besides, the words taken by themselves have no
ill meaning; for I imagine it will be allowed
that most of the great things which judges do
as judges, are such as ought neither to be done,
nor left undone by the king's commandment.
Where then was the offence? The record, I
think, shews that in the following words:
"prætextu cujus Dom.Rex erga Curiam et Justic. suos habere posset indignationem." &c.
"Ideo dictus Johannes committitur," &c. It
is observable, that the author of this letter was
an attorney of the Court, and by the contents
thereof he presumes to undertake for the behaviour of the judges in some great matters that
concerned their office. The letter was addressed to a person who was of the king's
council, and might possibly communicate the
contents of such a letter to the king; the consequence of which might naturally be, that
"Dom. Rev habere posset indignationem erga
Curiam," &c. for great things were sometimes done, in those days, by the king's commandment; and the judges, besides, held their
posts at will and pleasure.
The words "quæ litera centinel in se nullam
veritatem," were therefore proper for the
judges to insert, in order to acquit themselves
to the king; but they are no more the ground
of the judgment than these other words, "qui
est de Concilio Regis;" both being only incidental clauses that come in by way of description; for it is not said, "Quia litera prædicta
continet in se nullam veritatem." After all, I
would not have this construction of the case,
plain and natural as it is, pass merely upon my
own credit; for I shall shew that this case
was so understood by one of the greatest lawyers of his time, before lord Coke's 3d Inst.
appealed in the world.
21 Jac. B. R. Tanfield v. Hiron. Godbolt
405, 6.
The plaintiff brought an action upon the
case against the defendant, for delivering of a
scandalous writing to the prince, &c. Noy for
the plaintiff cited, 18 Ed. 3, a letter was sent
to Ferrers one of the king's council, the effect
of which was, that Scot chief-justice, and his
companions of the same bench, would not do a
vain thing at the command of the king; yet
because he sent such a letter to the king's
council, although he spake no ill, yet because it
might incense the king against the judges, he
was punished. If no ill was said, will it be
pretended that the falshood of what was said
could be a reason for punishing a man? Is it
not ridiculous to say, that the falshood of innocent or insignificant words can be criminal?
This book, therefore, follows the record of
Northampton's case, and says, because it might
incense the king against the judges, he was
punished; which is almost a translation of
'prætextu cujus,' &c. which Was the ground of
the judgment, "Ideo committitur.'
The next case which the barrister called to
his aid, is that of the Seven Bishops.* And
here he relies on a flourish of one of the counsel
for the bishops, and a dubious expression of
* See it in this Collection, vol. 12, p. 183.
one of the judges, separated from the rest of
bis discourse.
Sir Robert Sawyer, it is true, says, "Both
the falsity of it (the libel) and that it was malicious and seditious, ate all matters of fact,
which they (the king's counsel) have offered to
the jury no proof of," &c. This, I must confess, proves one point to which the barrister
adduced it, viz. that he was not the first who
insisted that to make a writing a libel, it must
be false. And when I have allowed this, I
may almost venture to say, it is the only point
he does prove from the beginning to the ending
of his long elaborate speech. — Let me, however,
oppose to this the reply of sir Thomas Powls,
in these words: "Whether a libel be true or
not, as to the matter of fact; was it ever yet
permitted in any court of justice to be made a
question, whether the party be punishable for
it? And therefore J wonder to hear these gentlemen say, that because it is not a false one,
therefore it is not a libel." Fol. 382.
Mr. Justice Powel also does say, that to
make it a libel, it must be false; it must be
malicious; and it must tend to sedition. Upon
which words of this learned and worthy judge,
I would not presume to offer any comment except that which other words of his own afford,
that plainly shew in what sense he then spoke.
His subsequent words are these : "They," the
bishops "tell his majesty, it is not out of
averseness to pay all due obedience; nor want
of tenderness to their dissenting fellow-subjects, but because they do conceive the thing
that was commanded them, was against the
Jaw of the land. They say, they apprehend
the Declaration is illegal, because it is founded
on a dispensing power. I do not remember in
any case in all our law, that there is any such
power in the king; and the case must turn
upon that. In short, if there be no such dispensing power in the king, then that can be no
libel which they presented to the king, which
says that the Declaration being founded upon
such a pretended power, is illegal." So that
the judge put the whole upon that single point,
whether it be true that the king had such a
dispensing power, or not; which is a question
of law, and not of fact; and accordingly the
judge appeals to his own reading in the law,
not to witnesses or other testimony, for a decision of it. In truth, the Petition of the Bishops
is not capable of having falshood or truth applied to it in any other sense, there being nothing else affirmed or denied in it, but that they
thought they could not do what was commanded them, because it was against the law.
This was the behaviour, these were the sentiments of that upright judge, that gained him so
much honour among all good men, as the barrister takes notice; not any opinion of his,
that the contents of a libel must be false in
fact, to make it a libel; as he would unfairly
insinuate.
Sir Samuel Barnardiston's case is the third
that is touched upon; and here too the gentleman finds nothing that can be strained to his
purpose, but the defendant's counsel insisting
on the want of proof to the malice and seditious intent of the author. He seems to have
forgot that the same gentleman insisted also to
have it proved, that the defendant was a person
of a turbulent and unquiet spirit, because these
words were set forth in the information; and
he takes no manner of notice how all this was
answered, which I must now do for him, in the
words of the Court: "Certainly the law supplies the proof, if the thing itself speaks malice
and sedition. As it is in murder; we say always in the indictment, he did it by the instigation of the devil: can the jury, if they find
the fact, find he did it not by such instigation?
No, that does necessarily attend the very nature of such an action or thing. So in informations for offences of this nature, we say, he
did it falsely, maliciously, and seditiously,
which are the formal words; but if the nature
of the thing be such as necessarily imports malice, reproach and scandal to the government,
there needs no proof but of the fact done; the
law supplies the rest." How shall any man
prove another person's malice, which is a
thing that lies only in a man's mind? How
should any man know that I am malicious
against the government, but by my actions?
These words, indeed, were pronounced by the
chief justice Jefferies, who was then the mouth
of the Court; but though he was really an intemperate judge, (or a monster, as the barrister,
in his bar-language, delights to call him) yet I
may safely refer it to all men of law, whether
these words could have discredited the best
mouth that ever spoke upon that bench.
An instance of this sort may not be impertinent, where a chief justice (who was no monster) addresses himself to a jury, that was trying
a libel in this manner: "I will not repeat the
particulars to you, only something to what the
defendant has said, that you may not be misled.
He says, it does not appear that, he did it maliciously or knowingly. There are some things
that you that are of the jury are not to expect
evidence for, which it is impossible to know
but by the act itself. Malice is conceived in
the heart; no man knows it, unless he declares
it: as in murder, I have malice to a man; no
man knows it. I meet this man and kill him;
the law calls this malice. If a man speak
scandalous words against a man in his calling
or trade, he lays his action, malice; though he
cannot prove it but by the words themselves;
yon may see, there is malice supposed to a
private person in that slander, much more to
the king and the slate."
Tutchin's case, the barrister does not properly cite, but endeavours to answer as a case
urged against him by the king's counsel; and
therefore I shall observe upon it in another
place.
But the case of cases is still behind, which
he reserved for the last, to make the point clearer
on his side, than all the rest put together could
do. It is Fuller's case. And it deserves notice, that although Fuller was charged with writ-
ing a libel, yet that was not the gist of the information. He was, in truth, prosecuted for
being a cheat and impostor, by order of the
House of Lords, as the king's counsel declare
in the opening.
The information accordingly sets forth,
"That W. F. intending the late king William
and his subjects to deceive, and to get several
great sums of money fraudulently and deceitfully from the said king, concerning a correspondency between divers officers and subjects
of the said late king, and the late king James,
falsely pretended to be had; did write and print
a libel, intituled, Original Letters, &c. with the
deposition of T. J. and T. F. esqrs. proving the
corruption lately practised in this nation; and
the said W. F. afterwards did publish, utter,
and for truth affirm, the said several false and
scandalous libels, without any lawful authority;
whereas in truth, the said T. J. did not depose,
upon his oath, as is contained in the said false
and scandalous libel; but the said scandalous
libels are false, feigned, and altogether contrary
to truth, &c." Here it is manifest he was accused of a cheat, in forging the correspondence
and the depositions just mentioned, with a design of getting money by his pretended discovery. And hence it comes, that the judge very
properly asks him, "Have you any witnesses?
If you take upon you to write such things as
you are charged with, it lies upon you to prove
them true, at your peril. How came you to
write these books that are not true? If you
have any witnesses, produce them." Thus said
and thus did that great man, lord chief justice
Holt; hut not upon a trial of the like kind with
Mr. Zenger's, as his counsel would have it
thought. For, in this case, the cheat and the
imposture was the offence, which consisted
wholly in the falsity; that is, in affirming such
things for realities, when they were nought
but fictions. On the contrary, had he been
able to prove those letters and those depositions
to be authentic, the discovery would have been
valuable, and might intitle him perhaps to favour and protection, instead of punishment,
however irregular he was in taking such a method to publish matters of that high consequence. After this, let the learned barrister,
in all his reading, shew an information or indictment for a libel, where the falsity is assigned in form with an ubi re vera, as the foundation of the offence, which is done in Fuller's
case; and then I will acknowledge, that the
questions put here by lord Holt would have
been proper, upon the trial of his client.
This is the sum of the barrister's law-cases.
And is it not high time to ask, whether such
gross misrepresentations of the books can proceed
from ignorance or disingenuity? Be that as it
will, it might certainly be expected, that a proposition, advanced with so much assurance, by
a man of years and reading, should have been
supported by some one authority in point, rather than by a series of low prevarication and
quibble. Could he not find, in all the bookcases and trials at large, concerning libels
(which are sufficient of themselves to make a
large volume,) one example of proof being received to the truth or falsity contained in a
libellous writing? Indeed, there is nothing
like it to be found; though the occasions have
been many, where such proof might be had, if
it were proper; nay, where the truth of the
thing was notorious to all men, and yet no
question ever moved concerning it. This shall
fully appear in the sequel.
If any thing can be necessary further to expose Mr. Hamilton's doctrine of libels, after
answering his own cases, it is only to subjoin
some others, that will shew how much he is
mistaken in almost every thing he has offered
on the subject. I shall therefore mention a
very few, that will bear a particular application
to his crude notions, without entering into a
multitude of others, to tire the reader.
16 Car. 2, the King v. Pym, 1 Sid. 219,
B. R.
Pym was indicted at Exeter for a libel, which
he delivered to a parson to be published in
church there, and was to this effect: "You
are desired to bewail the sodomitry, wickedness, whoredom, lewdness, that is of late broken
out in this formerly well-governed city; that
God would turn their hearts from committing
those wickednesses which go unpunished by
the magistrates." Pym confessed the indictment, and was fined 100l. He afterwards
brought a Writ of Error, and assigned for
error, that this was no offence, because though
he says, go unpunished by the magistrates;
yet be does not say that the magistrates knew
of it, and wickedness unknown cannot be punished. It was answered by the Court, that
this contains matter of great scandal to the government of the city; for it makes the late
government better than the present, &c. Hide,
Twisden, Keelyng, Windham, Just.
I have pitched upon this case, because the
barrister is fond of comparing the plantations
to large corporations; and he will find here,
that even those are not left to the mercy of
libellers, although they do not put in a claim to
the sacred rights of majesty : and that a misbehaviour of this kind to the magistrates of a
corporation is not entirely innocent, because it
is not to be judged of, or punished, as a like
undutifulness would be to our sovereign.
This case was adjudged about four years
after the Restoration, when the memory of the
preceding usurpation was fresh in every body's
mind. It is strange, therefore, Mr. Pym did
not put himself on his trial at Exeter; for it
was evident, beyond contradiction, to the people
of that age from their own knowledge, as it is
now to us from history, that the wickedness
specified in the libel was restrained by a stricter
hand before, than after the Restoration. But
this notorious truth, it seems, did not avail Mr.
Pym.
22 Car. 2, the King v. Saunders. Raym.
201. B. R.
Information for writing a scandalous libel to
H. Rich, who was indebted to him, and kept
him out of his money three years by obtaining
a protection, and at length getting into the prison of the King's-bench. Saunders wrote him
a letter, wherein he tells him, That if he had
any honesty, civility, sobriety, or humanity, he
would not deal so by h i m ; and that he would
the day be damned, and be in hell for his
cheating; and cited several places of Scripture
to make good his allegations. The defendant
was found guilty, and moved in arrest of judgment, that the substance of the letter is not
scandalous, but impertinent and insignificant,
&c. Cur. The letter is provocative, and tends
to the incensing Mr. Rich to break the peace.
The Court adjudged the letter scandalous, and
fined him 40 marks. Keelyng, Twisden,
Rainsford, Moreton, Just.
I would intreat the clear-sighted barrister to
look carefully into the words of this libel, and
try if he can discover any truth or falshood in
them that was capable of proof. And I must
remark upon both these cases, that though
they were adjudged in the reign of king
Charles 2, yet neither of them was upon a
state prosecution, or at a time when the spirit
of plots and factions had infected the courts
of justice; but they remain unquestionable
authorities at this day.
The case of Tutchin is strong against h i m ;
a case adjudged since the Revolution, before
that learned and upright judge sir J o h n Holt,
and plainly shew the fallacy that runs
throughout his whole argument.
The points insisted on by this chief justice,
in his charge to the jury, were these: "To
say that corrupt officers are appointed to administer affairs, is certainly a reflection on the
government. If people should not he called
to an account for possessing the people with
an ill opinion of the government, no government can subsist: Now you are to consider,
whether these words I have read to you do
not tend to beget an ill opinion of the administration of the government; to tell us, that
those that are employed know nothing of the
matter, and those that do know are not employed. Men are not adapted to offices, but
offices to men, out of a particular regard to
their interest, and not to their fitness for the
places. This is the purport of these papers."
If this was the purport of the papers, and so
criminal as hath been just said, it is amazing
surely, that Mr. Tutchin did not offer to prove
the truth of these allegations, and thereby
take out their sting! Could not he possibly
t h i n k of as many corrupt or incompetent
officers, ecclesiastical, civil, or military in
England, preferred by interest rather than
merit, as there were judges displaced and
courts erected in New-York? Or if he was
restrained, by the hard-hearted judge, from
disporting himself in this pleasant and spacious
field, could he not apply to the private knowledge which the jurors (as well as the rest of
mankind) had of these matters? For I imagine it will be allowed, that if no instances of
this sort could be shown at the time of
Tutchin's trial, it was the only period within
the memory of man, or the reach of history,
that wanted the like.
But the misfortune was, the poor man was
not blessed with such skilful counsel as is to
be had in Philadelphia, to think of these good
things for h i m ; otherwise you might have
heard an alert advocate (after returning thanks
to his lordship for nothing) address himself to
the jury in this or the like eloquent strain:
"Then, gentlemen of the jury, it is to you we
must appeal for witnesses to the truth of the
facts we have offered, and are denied the
liberty to prove: the law supposes you to be
summoned out of the neighbourhood where
the fact is alleged to be committed; and the
reason of your being taken out of the neighbourhood is, because yon are supposed to have
the best knowledge of the fact that is to be
tried. And were you to find a verdict against
my client, you must take upon you to say,
the papers referred to in the information, and
which are proved to be written and published
by us, are false, scandalous, and seditious.
You are citizens of London, honest and lawful
men, and the facts which we offer to prove
were not committed in a corner; they are notoriously known to be true. And as we are
denied the liberty of giving evidence to prove
the truth of what we have published, I will
beg leave to lay it down as a standing rule in
such cases, that the suppressing of evidence
ought always to be taken for the strongest evidence; and I hope it will have that weight
with you. Lay your hands upon your hearts,
gentlemen, and recollect: do none of you
know, nay, do not all of you know, certain
persons, who shall be nameless, that have been
lately promoted, by favour and interest, to
places of trust and profit, both in church and
state, army and navy, whom you must know
and believe in your consciences, to be ill men,
and no way qualified for such preferment; as
my sagacious client has most seasonably remonstrated to the neighbours, by virtue of that
right which every free-born subject hath of
publishing his complaints, when the matters
so published can be supported with truth?"
But is lord Holt asleep all this time? Can
any reasonable man, who has but common notions of judicature, imagine that this great
judge would suffer such trash as this to be
thrown out in any court where he sat in judgment? But what must he have said, if the
libeller before him had offered to prove, that
the law itself was at an end; that trials by
juries were taken away when a minister
pleased; that no man could call any thing
his own, or enjoy any liberty, longer than
those in the administration would condescend
to let him do i t ? Would he have said, that
these things did not tend to possess the people
with an ill opinion of the government; and
that governments might well subsist, though
men should not be called to an account for
punishing the like? Or would he have said,
it was no matter what opinion the people had
of the government, nor whether it subsisted
or not, provided these assertions were true;
and so have discharged the man as a publisher
of precious and useful truths, to put the
neighbours on their guard?
But here also the barrister lays hold of a
random question, put by one of the king's
counsel to Mr. Montague, who was for the
defendant, and was then touching upon the
affairs of the navy: Saith the former, Will
you say they are true? Now the latter had
hinted as much as that these things were true;
but did it with that caution which a man of
skill uses, when he would say something in
support of a lame cause, but don't care to press
an impropriety too far. For that learned gentleman was very sensible, that if he had presumed to insist expressly on the truth of the
matters contained in his client's papers, a
severe reprimand was the best thing that could
have befallen him. His words are these :
"Nobody can say, that we never had any mismanagements in the royal navy; and whenever that has happened; the merchants of
England, in all probability, have suffered for
it." But does the judge, in his charge to the
jury, vouchsafe to give this matter any answer,
or so much as to mention it? Lord Holt did
not usually pass by material things, that were
offered in defence of persons tried before him;
yet, in this case, he makes no question OF
scruple about the truth or falshood of Tutchin's
papers, although they contained many things
which his lordship, the jury, and all the
world knew to be ****. This candid judge,
however, puts the merits of the whole upon
the scandal of the government, and the evil
tendency of such writings. And therefore I
must once more call upon the northern barrister
to shew a single instance, where witnesses
have been produced by counsel, and admitted
by the Court to prove the truth of a libel.
When he does this, it will deserve consideration; but till then, he may talk by the
hour without any meaning.
I could mention some cases of a more modern date, that have been adjudged in Westminster-hall, when this wild doctrine was not
so much as thought of, and when it would not
have been altogether useless, had it been practicable; but I have chose to mention such
only as are reported, that the books may speak
for themselves, and judge between us.
But this lawyer seems to be above having
his points of law decided by the authorities
of the law; and has something in reserve,
which may serve to overthrow not only what
has been offered in this paper, but even all the
books of the law. This is what he calls the
reason of the thing; but is truly and properly
a sketch of his own politics; which leads me
to shew, that the true reason of the thing here
agrees with the law, and consequently both
these are against this expert master of law
and reason.
The reason of the thing, as well as it can
be collected from a heap of particulars huddled
together without order and method, may be
reduced to the three following heads:
1. The form of an information for a libel,
and the necessity of knowing the truth or
falshood of its contents, in order to direct the
judges in awarding arbitrary punishrnent.
2. The right every man hath of publishing
his complaints, when the matters so published
can be supported with truth.
3. The necessity there is of using this right,
in the plantations especially, by reason of the
difficulty of obtaining redress against evil governors by any other means.
1. It will not be improper to premise, under
the first head, that a gentleman of the law,
who takes upon him to pronounce so magisterially as the northern barrister has done concerning libels, ought to have considered well
the nature and extent of his subject, it might
be expected, that he is not unknowing in any
part of learning necessary to fix his idea of a libel; and yet the present case would appear to
be quite different. This learned gentleman
might have informed himself, by reading some
of the ancient laws before the Conquest, that
when the falsity of virulent writings and
speeches was taken into the description of the
crime, there was a specific penalty annexed,
viz. Cutting out the offender's tongue, Lamb.
Sax. Laws. But this severity seems to have
fallen into disuse under the Norman kings; and
accordingly Bracton, who wrote in the reign of
Henry 3, gives a description of these offences,
as they were understood in his days, wherein
falsity is neither expressed nor implied. These
are his words : "Fit autem injuria, non solum
cum quis pugno percussus fuerit, verberatus,
vulneratus, vel fustibus cæsus; verum cum ei
Convitium dictum fuerit, vel de eo factum Carmen famosum et hujusmodi," fol. 155. Indeed, here is no mention of libels against the
king, or the state; the reason of which seems
plainly to be, that offences of this sort were considered as a species of treason, not only in that
age, but in several ages after, notwithstanding
the statute 25 Ed. 3, and though they have by
happy degrees dwindled into misdemeanours,
yet nobody, except the barrister, will say they
are come to have a greater indulgence from the
law, than the like offences against private persons. How far, therefore, Bracton's acceptation of a libel has prevailed ever since, must be
submitted upon what has been offered in the
preceding part of the Remarks.
Here the barrister throws in a shrewd question, arising from the form of the information,
which charges the libel to be false : This word
'false,' says he, must have some meaning,
else how came it there? I hope Mr. Attorney
will not say he put it there by chance; and, I
am of opinion, his information would not be
good without it. By way of answer to this, I
must take leave to put a question or two in the
same strain. Suppose a man brings an action
of trespass for violating his wife, and he fairly
sets forth the troth of the case, viz. That the
defendant, by amorous addresses, letters, pre-
sents, &c. did gain the consent of the plaintiff's
wife, and at length debauched her: I would
ask, whether an action of trespass thus laid can
be supported? I fancy not; and yet this is a
more just account of the matter, than when vi
et armis, viz. swords, staves, knives, &c. are
introduced as instruments of invading this
tender part of our neighbour's property. Suppose further, a man kills another, whom he
never saw or heard of before, and he is accused
of murdering him of malice fore-thought, how
come such words to be put into an indictment
for a fact so circumstanced? They must have
some meaning; surely they are not put there
by chance; and, I am of opinion, the indictment would not be good without them? Why,
there is this short answer to be given to all
these childish questions: there are many words
used in pleadings of most kinds, sometimes for
aggravations, sometimes for comprehension,
often in compliance with ancient usage, which
are not traversable, and many times are incapable of proof. The form of indictments and informations follows the nature of the fact, and
sets it out in its worst dress; and if the fact is
made appear to he unlawful, all the hard names
are supplied by implication of law.
This is not all, quoth the counsellor: "It is
said, that truth makes a libel the more provoking: well, let us agree for once, that truth is a
greater sin than falsehood; yet, as the offences
are not equal, and as the punishment is arbitrary, is it not absolutely necessary that they
should know whether the libel it. true or false,
that they may by that means be able to proportion the punishment? For would it not be a sad
case, if the judges, for want of a due information, should chance to give as severe a judgment against a man for writing or publishing a
lie, as for writing or publishing a truth?" Now
is it not a sad case, that he should want to be
told, that human laws don't strictly regard the
moral pravity of actions, but their tendency to
hurt the community, whose peace and safety
are their principal objects; so that by this
standard only are punishments measured? If
this profound sophister is of another opinion,
let him give a reason why it should be a
greater crime in our law for a man to counterfeit a silver shilling, than to cut his father's
throat.
2. The right of remonstrating or publishing
just complaints, the barrister thinks the right
of all freemen; and so think I, provided such
remonstrances and complaints are made in a
lawful way. But when he comes to explain,
it is not a court of justice, it is not a house of
representatives, it is not a legislature that is to
he troubled (as he phrases it) with these things.
Who then, I pray, is to be troubled with them;
for the king, it seems, is out of the question?
Let the barrister speak for himself; They have
a right, (says he) publicly to remonstrate
against the abuses of power in the strongest
terms, to put their neighbours upon their guard,
&c. and in another place, he speaks of it as a
hardship, if a man must be taken. up as a li-
beller, for telling his sufferings to his neighbour.
Now, though I wish and hope, as earnestly as
he can do, that a free people may never want
the means of uttering their just complaints, and
of redressing their wrongs too, when their
complaints are not beard; yet I always thought
these things were better understood than expressed in a court of law; and I shall probably
remain in that opinion, till the learned gentleman can produce something from the common
or statute law to shew, that a British subject
has a right of appealing publicly to his neighbours (that is, to the collective body of the people) when he is injured in his person, rights or
possessions. When I am assured that he can
do this, I promise him I shall not grudge a
voyage to that country, where liberty is so well
understood, and so freely enjoyed, that I may
receive the important discovery from bis own
instructive mouth.
I know the law-books assert the right of
complaining to the magistrates and courts of
justice, to the parliament, to the king himself;
but a right of complaining to the neighbours is
what has not occurred to me. After all, I
would not be thought to derogate, by any thing
I have said, or shall say, from that noble privilege of a free people, the liberty of the press.
I think it the bulwark of all other liberty, and
the surest defence against tyranny and oppression. But still it is a two-edged weapon, capable of cutting both ways, and is not therefore to
be trusted in the hands of every discontented
fool, or designing knave. Men of sense and
address (who alone deserve public attention)
will ever be able to convey proper ideas to the
people, in a time of danger, without running
counter to all order and decency, or crying fire
and murder through the streets, if they chance
to awake from a frightful dream. But I must
again urge, that these points are not fit to be
discussed in a court of justice, whose jurisdiction is circumscribed by positive and known
laws. Besides, they take place properly in a
sovereign state, which has no superior on earth;
and where an injured people can expect no relief, but from an appeal to heaven. This is far
from being the case of colonies; and therefore
I come to shew, under the third head, that the
barrister's reason of the thing is no other than
reason inverted, which possibly may help the
projects of a demagogue in America, but can
never be reconciled to the sentiments of a lawyer, or the principles of a patriot, considered as
a subject of Great Britain.
3. I have hitherto been taught to believe,
that when a brave and free people have resorted to measures unauthorised by the ordinary
course of the laws, such measures have been
justified by the extraordinary necessity of the
case, which excluded all other means of redress: and, as far as I understand the constitution, and have heard accounts of the British
colonies, such a case cannot well happen, and
has never yet happened among them. But
here the barrister is ready to ask, how must we
behave when we are oppressed by a governor,
in a country where the courts of law are said
to have no coercive power over his person, and
where the representatives of the people are, by
his intrigues, made accomplices of his iniquity?
Certainly it can't be a new discovery to tell
this lawyer that as the governor is a creature
of the crown, so the most natural and easy
course is to look up to the hand that made him.
And I imagine it may be affirmed (without
catching an occasion of offering incense to majesty) that if one half of the facts contained in
Zenger's papers, and vouched for true by bis
counsel, had been fairly represented and proved
at home, Mr. Cosby would not have continued
much longer in his government; and then the
city of New York might have applied to itself
the inscription of the gold box, "Demersæ leges, timefacta libertas hæc tandem emergunt,"
with greater propriety and security, than could
possibly be derived from the impetuous harangue of any lawyer whatsoever. I am the
more emboldened to say thus much, because
though it is my lot to dwell in a colony where
liberty has not always been well understood, at
least not freely enjoyed, yet I have known a governor brought to justice, within these last 20
years, who was not only supported by a council
and assembly, besides a numerous party here,
but also by powerful friends at home; all
which advantages were not able to screen him
from censure, disgrace, and a removal from
the trust he had abused.
It is not always necessary, that particular
persons should leave their affairs and families
in the plantations to prosecute a governor in
Westminster-hall, unless their fortunes are
equal to the expence; for it is seldom seen,
that the violence of a bad governor terminates
in private injuries, inasmuch as he can't find
his account in any thing less than what is of a
general and public nature. And when this is
the case, I hope none of our colonies are, even
at this time, so destitute, but that they can
find the means of making a regular application
to their sovereign, either in person, or in his
courts at Westminster, as their case may require.
But the wild inconsistency that shines
through most parts of this orator's speech, is
peculiarly glaring in that part of it now before
me. The remedy which he says our constitution prescribes, for curing or preventing the
diseases of an evil administration in the colonies, I shall give in his own words: "Has it
not been often seen (and I hope it will always
be seen) that when the representatives of a free
people are, by just representations or remonstrances, made sensible of the sufferings of their
fellow-subjects, by the abuse of power in the
hands of a governor, they have declared (and
loudly too) that they were not obliged by any
law to support a governor, who goes about to
destroy a province or colony," &c. One would
imagine, at first sight, that this man had the
same notion, with the rest of mankind, of just
representations and remonstrances to the representatives of a free people, which has ever
been understood to be by way of petition or address, directed and presented to them in form;
in which case it is hoped that they, being
moved by the complaints of the people, will
stretch forth their arms to help them. But,
alas ! we are all mistaken; for he tells us, in
the same breath, that the right way is by telling our sufferings to our neighbours in gazettes
and newspapers; for the representatives are
not to be troubled with every injury done by a
governor; besides, they are sometimes in the
plot with the governor, and the injured party
can have no redress from their hands; so that
the first complaint (instead of the last resort)
must be to the neighbours, and so come about
to the representatives through that channel.
Now I would be very glad to know, what the
neighbours can do towards effecting the desired
reformation, that will be attended with so good
success, and so few ill consequences, as a regular application to his majesty would be. It
would be pleasant, doubtless, to hear this politician speak out and explain himself at forge
upon this subject.
I confess it surpasses my
comprehension to conceive what the neighbours, inspired with weekly revelations from
the city journalist, can do with their governor
and assembly, unless it be to reform them by
those persuasive arguments which the major
vis never wants good store of. If this be the
patriot's meaning, his words may possibly be
understood; but without this meaning they are
mere jargon,
In a word, I shall agree with the barrister
(and so take my leave of him), that the liberty
of exposing and opposing arbitrary power is
the right of a free people; and he ought, at
the same time, to admit, that the order of
things, and the peace of society, require that
extraordinary means should not be used for this
purpose, till the ordinary have failed in the
experiment. The supreme magistrate of an
independent kingdom or state, cannot always
be controuled by the one, and then the other is
justified by that consideration. But in colonies
that are from their creation subordinate to their
mother-country, there is no person who is not
controulable by regular and well known methods of proceeding; and consequently there
can be no absolute necessity of flying to extremities, at least in the first instance. From all
which, I conceive, it follows, that local considerations, upon which the gentleman lays so
great stress, conclude directly against h i m ;
and I hope the security which the British constitution affords to every man's person, property, and reputation, as well as to the public
tranquillity, is not lessened by any distance
from the fountain of power and justice; but
that a libel is a libel, and punishable as such in
America, as well as in Europe.
I am sensible, there is a freedom of expression used in these papers, of which I should
disapprove in the common cases of controversy:
but I found myself under a necessity of shewing no respect to the performance under consideration, unless I were to forfeit the little that
might be flue to the Remarks. For though a
lawyer is free, nay obliged by the duty of his
profession, to make the most of the cause he
espouses, (his real sentiments being suspended
for that time, by reason of the biass under which
he acts) yet when he draws his private opinion
into the debate, and interests his passions in
the success of it, he then departs from his character, and becomes a party, rather than an advocate. In short, there is an air of self-sufficiency and confidence mixed with the whole
Jump, enough to give a disrelish even to good
sense and good law; but is nauseous, beyond
all bearing, when neither of these is found.
Among lawyers, I was sure this lawyer deserved no answer; and yet an answer seemed
indispensable, not only for the reasons given at
my setting out, but also in order to save many
well-meaning people from reverencing a piece
of buffoonery, that had been thrust into the
world with so much florid conceit, and a gold
box tagged to the end of it: a piece, wherein
the whole common-place of popular declamation (equally adapted to all popular occasions)
is exhausted, and the Holy Scriptures brought
in to season his jokes. But as this last seems
designed only for a sally of wit and humour, I
shall not offer to detract from its merit; considering too, it had so happy an effect as to set
the good people a laughing, when they heard
the Word of God most ingeniously burlesqued
in a Christian court: a piece that hardly
shews the author to have been serious when he
pronounced it, or his wise benefactors when
they rewarded him; but that his solemn professions of principle and duty compel a charitable mind to suspect ins knowledge rather
than his sincerity; and citizens are ever
thought to be in earnest, when they part with
their gold and shew their learning.
Sir, I ought to make an apology to you for
trespassing so long upon your patience, which
might have been better employed; but I flatter
myself with the hopes of having some allowance
made for an honest, though weak attempt to
rescue the profession of the law, and the interest of lawful liberty from the disgrace thrown
upon both in one of our sister-colonies. This
is the truth, and let it be my excuse. I am
yours, &c.
ANGLO-AMERICANUS.
LETTER II.
Sir; It must be mortifying, no doubt, to a
person who has received peculiar marks of
public approbation, to be told, that the very act
which procured it was so far from being commendable, that it really deserved a severe censure; and one would the rather decline such
an office, how just soever the occasion, because
it cannot be done without condemning at the
same time the judgment of those whose suffrage had been thus unworthily obtained. But
when the laws are openly perverted, and courts
of justice, with an air of gravity, drolled out
of their established rules, by such whose pro-
fession supposes them ministers of justice;
and when this too shall be dignified with applause, and made highly meritorious; I conceive neither good-nature, nor the solemnity of
public seals, should restrain an honest pen from
exploding the practice, in order as well to stop
the progress of its evil effects, as to prevent the
like attempts for the future.
Virtue and merit, it is most certain, ought to
be encouraged, especially by all in authority;
bat when that which is merely counterfeit shall
gain esteem, stand in the room of what is truly
genuine, and be actually loaded with the rewards
thereof, it does not only frustrate the original
intention of such rewards, but likewise give
countenance to the impostor, and furnish him
with still farther means of vending his false
wares, in prejudice of the public. Now this,
with all due submission, I take to be the case
of the Corporation in North America, with regard to the honours they were lately pleased to
confer on a noted barrister in those parts, for
his supposed services in the affair of Zenger the
printer, whose trial has been so plentifully dispersed here, and in other places. Aggregate
bodies, we find, may be mistaken, and too
often are, as well as private men; and when
they do err, it is of the more dangerous consequence, on account of the extent of their power
and influence. The province in general of
New York, or the city in particular, might, for
aught I know, have sufficient cause of complaint, in some respects, against their then commander in chief, and his administration; but
it is to be considered, that as there never was
one absolutely free from faults, so it is the
great privilege of the inhabitants of every British government, that a proper channel is
chalked out, in all such events, and a way
open for relief. The method, therefore, which
the constitution prescribes ought to be strictly
pursued; and any illegal deviation is not only
inconsistent, and unjustifiable in itself, but has
besides, a tendency to introduce mischiefs more
to be dreaded even than those that were sought
to be redressed. It is the law which must be
the standard of right and wrong; and whoever
has recourse to any other aid, or knowingly
advises thereto, in the case of particular grievances, cannot act on a true principle of public
spirit, but must be influenced by unworthy
motives, and is always more or less an enemy
to the community, according to his situation,
and in proportion to the talents he happens to
possess. If Mr. Zenger then will avowedly
publish seditious libels against the government
under which he lives, and his counsel will offer
to support him by artifices unbecoming the
long robe, and advancing propositions manifestly contrary to law; as the former deserves
to be punished by it, so the latter, I humbly
presume to say, whatever he may claim from
his client, ought not to be paid his wages by
any set of men who owe their being to the
law, and cannot exist without it.
But I shall not scruple to acknowledge here,
and I do it on no superficial observation, that
there can't he a more pernicious creature, in a
distant colony, than that of a practitioner of the
law, with much assurance, little knowledge,
and no morals; a character not unheard of in
more than one of his majesty's plantations, and
which yet I would by no means apply to Mr.
Hamilton, any otherwise than may appear to
be just, from the performance he has, it seems,
taken so much pains to publish to the world.
The judicious Remarks already made upon it by
Anglo-Americanus, will hardly leave room for
any thing to be added that is very material;
and therefore I shall content myself with a few
gleanings only, and make some cursory reflections thereon, whilst (hey afford me an opportunity of bearing my testimony also against
what I think the most indecent behaviour at
least, if it may not be called the boldest outrage,
that ever was exhibited from the bar, without a
suitable chastisement.
Whoever has enquired into the doctrine of
libels, and the reason of their punishment, will
perceive, that they take their degrees as they
affect private persons, particular magistrates,
or are aimed against the government itself;
and I may venture to say, that no lawyer of
reputation will deny but what is set forth in the
information against John Peter Zenger was of
this last kind, and that too conceived in the
grossest terms, such as will not admit of a different construction, or of any other meaning
than what is put upon them by the prosecutor
for the crown. Now I am sensible, that great
allowances are, with good reason, made to
counsel in the heat of argument, and when supposed to be animated with a laudable zeal for
their clients. Nor has it been usual to correct
them for every harsh and hasty expression,
provided they keep within bounds, and stick to
that which is their duty, without running into
matters that have no relation to the issue, and
cannot fairly serve the side they espouse. Yet,
as the lord chancellor Nottingham occasionally
said, Counsel should not speak as if they would
abet the guilt of their clients rather than advocate for their innocency. And since your
ingenious correspondent has clearly evinced,
that the truth of a libel cannot be given in evidence, that it is no justification, on the general
issue, and consequently no proper defence to a
charge of that nature (of all which Mr. Hamilton could not, or ought not to have been ignorant), it is worthy of consideration whether he
did not involve himself in his client's crime,
and partake of his guilt, by declaring in the
most public manner, that the facts published in
the news-papers, and contained in the information, were true; and offering to prove them to
be so before a court, which had no power to redress the grievances complained of, 4 Co. 14.
Hob. 166, 7.
Sir Bartholomew Shower, I remember, in
his argument in the case of the king against
Berchet et al. asserts, that "in all cases of
contempts to a court, no presentment is necessary, no not so much as to convict; for if done
in Facie Curiæ, a record may be made of it,
and a punishment judicially inflicted, and thai
executed immediately." Show. Rep. 110.
And agreeable hereto, we find, that in a late
case of the king against Thorogood, Trin. 9
Geo. primi, the defendant having made an affidavit in C. B. and appealing on summons, confessed that he made it, and that it was false;
whereupon the Court recorded his confession,
and ordered that he should be taken into custody and stand in the pillory, &c. which was
executed accordingly the last day of the term.
Mod. Ca. in Law & Eq. 179, 180. This is the
more remarkable, because it was in the Court
of Common-Pleas, which has ordinarily no
jurisdiction in criminal cases. — May it not
from hence be inferred (I hint it with a due
saving to all the just privileges of the bar) that
the Court at New-York might well have recorded some of the most seditious expressions in
Mr. Hamilton's rhapsody, and committed him
for the same, &c.? If they had, I doubt the
blame must have centered in himself, and his
own conduct; of which therefore he might
then have had leisure to repent, as well as of
his long journey to so ill a purpose.
But it will not be amiss, perhaps, for example sake, to give an instance of what has
been done on the like occasion with that before
us; and to this end I. shall cite a case in the
Court of King's-bench, many years after that
of the Star Chamber was at an end, and which,
in the words of sir Thomas Raymond, was as
followeth: "Memorandum, June 18, 1C80,
Mr. Nathaniel Reading having been convicted
(before justices of Oyer and Terminer by virtue
of a special commission (for endeavouring to
persuade Bedlow, who was a witness against
the noblemen imprisoned in the Tower of London, to forbear his prosecution of them; and
he the said Mr. Reading having had judgment
executed upon him, by being set in the pillory,
and fined 1,000l. and imprisoned for the same,
but his fine since pardoned by the king, came
this day into court, and demanded that an information, which he there brought in his hand,
might be received by Mr. Astrey against the
commissioners who condemned him, of which
my brother Jones and brother Dolben were two,
and that the information might be filed. But
the Court did declare, that he was in the wrong
way to exhibit, any information in this manner,
and did cause his words, whereby he did accuse
the two judges of oppression, to be recorded;
and for these words, and for that he was infamous by having been on the pillory, the gentlemen at the bar did pray that his gown might
be pulled over his ears, he having been formerly a practiser at the bar, which was ordered and executed in court; and he was also
condemned in court to pay the king 500l. and
to lie in prison till he paid it," Raym. Rep. 376.
The trial of this gentleman referred to here,
may be seen in the State Trials, on which occasion the lord chief-justice North made a speech
aggravating the defendant's offence as he was a
counsel, one who ought to be a man of knowledge, and a minister of justice to assist the
Court wherein he pleaded. He said, he thought
the Court ought to shew a more than ordinary
severity against such an one; and that it is a
great credit and benefit to the profession, that
the members of it for such offences should be
dealt with more severely than we should deal
in other cases. Id. p. 374, 5. Far be it from
me to make any invidious comparison here betwixt the present practiser in Pennsylvania, and
the quondam one in Westminster-hall, though
they are both celebrated, the one in the trial of
Mr. Zenger, and the other in his own. It may
however be noted, that the latter was said to be
artful and affectedly eloquent, and to have
strove to lead the judges out of the way, while
he was told by the chief-justice, that his defence
was artificial, because it was nothing to the
purpose; and by another of the judges, that
he disgraced his profession by making so weak
a defence. But without adverting to any particular beauties in the modern performance,
this is certain, that counsellor Reading lost the
bar-gown by his art, and counsellor Hamilton
got a gold-box of five ounces, with the freedom
of the city of New-York, by his. A pregnant
instance of the capriciousuess of fate, and of
the justness of your late correspondent's observation at the entrance to his excellent Remarks!
The gentlemen at the bar (as indeed it might
well be expected from their education, and the
nature of their business) have been remarkable
for observing the regard that is due to all in
authority with the utmost delicacy; and in return have always been used with suitable respect. But that the lawyer of Philadelphia
may see the courts of justice in former ages,
as well as of late years, did not spare the unruly members of the profession any more than
others, tor much less faulty behaviour than that
of the leading counsel in Zenger's trial, I will
refer him to a ease which happened Mich. 13
Eliz. Rot. 39, when Henry Blaundford, a
counsellor at law, was committed to the Fleet,
and fined, for falsely reporting the opinion of
the lord Leicester and secretary Cecil with
these words, 'Humanum est errare.' And that
even noblemen met with the like treatment on
such occasions, will appear from the case of
the lord Stourton, who, 19 Hen. 8, was committed by the Court, and fined for saying these
words, "I am sorry to see rhetoric rule where
law should."
Before I proceed, I will mention one case
more, purely to shew how dangerous it is to
afford any unlawful helps to persons on their
trials in criminal prosecutions, even though it
be merely by way of private instructions, when
such instructions are to be publicly made use of,
and import scandal to the government. It is
the case of the King against Aaron Smith,
Mich. 35 Car. 2, in B. R. "This term (says
the book, which has the allowance of all the
judges) Aaron Smith was brought into court,
being formerly convicted on a trial at bar, for
delivering to Stephen College, being upon his
trial at Oxford for high-treason, a paper of instructions, full of scandalous reflections upon
the king and government; as, That they might
as well have hanged him at Tyburn as he came
by, as brought him thither, only to murder
him with a little more formality. For which
the Court gave judgment, that he should pay
a fine of 500l. stand on the pillory twice, and
be of the good behaviour for a twelvemonth,"
Skinner's Rep. 124. I shall only observe this
case was on an information, so much inveighed
against by Zenger's counsel, and yet I never
heard it censured at all, as was that of poor
College, I own, with too good reason.
It is now time to take notice, that there is,
amidst a heap of jargon and absurdities, one
obvious mistake, which runs throughout Mr.
Hamilton's ostentatious harangue, and that is
in relation to the Court of Star-chamber. He
would suggest, that because that court was
abolished by act of parliament, on account of
some insufferable abuses that had crept into it,
all the cases that had been adjudged there, on
informations for libels, were consequently of no
authority.
Whereas the judgments given
there, in matters properly cognizable before
them, which libelling especially was, are allowed to be good law at this day, and are constantly quoted as such in the Court of King'sbench. Indeed it is said, that the reason of
disallowing the Star-Chamber-Court was because their authority was before, and now is,
in B. R. and consequently that court unnecessary, Comb. 36. So the lord chief justice Holt
declared, that B. R. possessed all the lawful
power the Star-Chamber had, Id. 142. And
that the Court of Star-Chamber was taken
away, because the crimes were punishable here,
5 Mod. 464, which is likewise intimated by the
statute itself. Now though [ am as well satisfied perhaps with the taking away of the
Court of Star-Chamber, considering the occasion that had been given, as our northern barrister can possibly be, and should equally rejoice, I hope, at the redressing any other public
grievance; yet I cannot, with him, condemn
by the lump, and argue, that because that
court did some things amiss, therefore it did
nothing right. At this rate, every court that
had, or has a being, may be in danger of the
same epithets he loves to bestow on that we
are speaking of; and it may as well be supposed, that because a certain set of citizens,
not unknown to Mr. Hamilton, lately did a
very silly thing, they therefore never did a wise
one. For which reason I presume it will not
be altogether impertinent to produce the sentiments of that oracle of the law, sir Edward
Coke, concerning the Court of Star-Chamber.
"It is (says he) the most honourable court,
our parliament excepted, that is in the Christian world, both in respect to the judges, and of
their honourable proceedings according to their
just jurisdiction, and the ancient and just
orders of the Court. For the judges of the
same are, the grandees of the realm, the lord
chancellor, the lord treasurer, the lord president of the king's council, the lord privy seal,
all the lords spiritual and temporal, and others
of the king's most honourable privy council,
and the principal judges of the realm, and such
other lords of parliament as the king shall
name. And they judge upon confession, or
deposition of witnesses. And the Court cannot
sit for hearing of causes under the number of
eight at the least. And it is truly said,
"Curia Cameræ Stellatæ si vetustatem spectemus, est antiquissirna, si dignitatem, honoratissima." This court, the right institution and
ancient orders thereof being observed, doth
keep all England in quiet." 4th Inst. p. 64.
Conformable hereto, a late learned writer, who
was advanced to the highest posts in the law
in a neighbouring kingdom to that of our
mother country, and wherein he died, has a
paragraph, which I believe will give us a truer
account of the Court itself, and the abolishment
of it, than what is to be learned from our barrister's speech at New York, and therefore I will
insert it here.* "The court of Star-chamber,
whilst kept within due bounds, was certainly of
the greatest use to preserve the peace and security of the kingdom; and perhaps was the
only court which by its ordinary and proper
jurisdiction, could effectually prevent and punish riots, perjuries, and other misdemeanors of
the highest nature. But being made use of by
the Court to support proclamations and orders
of state, and to vindicate illegal commissions
and monopolies, that extension of their power
became a grievance insupportable, and the nation was never easy till that court was entirely
suppressed by act of parliament. The House
of Commons were so eager in their zeal to destroy what they called a Court of Inquisition,
that though the Bill was of so great consequence, yet they sent it up to the Lords, with
only once reading it, and without its being ever
committed, which was a thing, perhaps, never
before heard of in parliament." Cla. v. 1. 223.
I need only add on this head, that the crime
of libelling is the same now as it was while the
Court of the Star Chamber subsisted, and the
nature of the offence the same then as now; a
crime that must necessarily be punished as
long as there are states and communities established in the world. And our assuming barrister will not find an author that treats of the
crown law since the statute of 16 Cha. 1. cap.
10, any more than before, but makes use of the
cases adjudged in the Star-Chamber generally
as good law, and of equal authority in those
matters with such as were afterwards adjudged
in the King's-bench. Some indeed are justly
liable to exception in the former, as we have
also known too many in the latter, particularly
during the next succeeding reign of Cha. 2,
none whereof are, however, God be praised,
to be met with, or heard of since the glorious
* See A Discourse concerning Treasons and
Bills of Attainder, p. 94, printed anno 1716,
wrote by Mr. West, afterwards Lord Chancellor of Ireland, who also wrote an ingenious
and learned treatise, entitled, An Inquiry into
the Manner of creating Peers. Former Edit.
and happy Revolution in 1688, which, I trust,
has for ever excluded all partiality and oppression from Westminster-hall.
But the learned lawyer of Philadelphia declares, That he has not, in all his reading,
met with an authority that says we cannot be
admitted to give the truth in evidence upon an
information for a libel. I don't know what
this gentleman's reading may be; but if he
had read some of the cases above-mentioned,
which could not well escape him, it might reasonably have been expected he would have
taken warning, been a little more cautious,
and not have ventured to incur the penalties
which others before him had so justly suffered.
By all his reading, he would insinuate, I suppose, that he had read all: and if that was true,
it might we!l be thought he had read to very
little purpose, who could make so ill an use of
it, or think it a duty on him to go to the utmost parts of the land, to propagate doctrines
and principles diametrically opposite to, and
just the reverse of what he must have read.
We shall soon discover that the barrister's
reading is not quite so extensive as he would
have it imagined. But it is previously to be
observed, that if there was no such authority
in terminis as that he calls for, a man who
reads with any tolerable understanding would
of course infer the same thing, when all the
books on the subject of libels lay it down as a
rule, which they unanimously do, that it is not
material whether the libel be true or false. For
if that be not material, to what end should the
truth be offered in evidence? Or, how should
it be rejected before it was offered, which undoubtedly is the reason that there have been
no late instances of that sort. It might suffice
therefore to undertake, as often as this wellread lawyer produced a precedent of its being
demanded from the bar to give evidence of the
truth of a libel, to shew that it was as often
dented by the Court. And though I admit it
has been attempted before, on trials for libels of
the less enormous kinds, yet he is probably the
only one that has done it in any case within
these hundred years. However, if we would
find an instance of that sort, we must necessarily have recourse to the proceedings of the
Court where that crime was usually punished.
The Star-Chamber Reports then may satisfy
Mr. Hamilton, that Term Pasc. 7 Car. 1, there
was the case of Coston, gent. v. Hitcham,
Mil. Servient. ad legem, as follows : "The
defendant, the morning before he went to the
sessions, being a justice of the peace, received
scandalous and libellous articles against the
plaintiff, carried them to the sessions in his
pocket, and, in open court, in disgrace of the
plaintiff, pulled them out and said, You shall
see what a lewd fellow this is, and not fit to
speak in this place; and then caused the said
libellous articles to be read in the public sessions. And the plaintiff then desiring a copy
of them, and to be tried upon them, the witnesses to prove them being noted in the margin, the defendant did not suffer him to have a
copy, or to be tried thereupon, nor took any
course that he might at the next sessions, or at
any time after be questioned for them, but
took the articles again out of the sessions and
carried them away. And after, further to disgrace the plaintiff in his practice (being an
attorney,) sent the said articles to Mr. Justice
Harvey, at the reference of a cause to him,
which Coston attended; and a jury having
given a verdict against the defendant, he sent
for the jurors and questioned them about their
verdict, and told them they were a company of
fools, and that if there had been but one vise
man among them, their verdict had not been
so. And tor these offences he was committed
to the Fleet, and fined 200l. In this cause,
the defendant would have had witnesses to
prove the matter of the said scandalous articles
to be true, but that was disallowed by the Court."
Rush. Col. vol. 3, p. 36, in Append. This, I
presume, the barrister, when he is serious, will
allow to be in point, though it happened not to
fall in the way of his reading. He cannot object, surely, that it does not appear to be on an
information preferred by the Attorney-General,
since it is a much stronger case than if it bad.
For if the Court would not receive such evidence in a cause depending on the complaint
of a petty solicitor for being libelled, and this
too preferred against a justice of peace, a knight,
and a serjeant at law; a fortiori, they would
never admit it on an information exhibited, by
bis majesty's attorney general, against a private person, for libelling the government.
There was also, as I have learned, divers
years before, viz. Mich. 2 Jac. the case of
Peter Brereton, clerk, for writing a scandalous
letter to Loyd, register to the bishop of St.
Asaph, and sent to himself, who was therein
charged with bribery and extortion in his office; for which libellous letter the defendant
was sentenced, though, as the book has it, he
would have undertaken to prove the contents
of the letter to be true. Here then are two
precedents of what the barrister himself had
never met with all in his reading; the one in a
ease for libelling a practising attorney, and the
other of the register of a bishop's court; but I
believe I may defy this gentleman, if he were
to read as many more years as he has done,
to produce a third, where the offence under
prosecution, being of the highest degree, and
levelled at the government, like that tor which
he was so zealous an advocate, the counsel for
the defendant dared to offer evidence of the
truth of it. On the contrary, if he had dipt
into the lord chief justice Keelyng's Reports,
fol. 23, (before he left his chambers) he would
have there found it resolved by the whole
court, that though a counsellor at law may
plead his client's cause against the king, yet, if
under colour of that he takes upon him to vent
sedition, he is to be punished.
ft is no Wonder, indeed, if our barrister
should be unapprized of Brereton's case, it
not being (at least to my knowledge) in print;
and you perceive I was under no necessity of
mentioning it, being before provided with an
authority to my purpose. But it is reported,
as above, in sir Thomas Mallet's MS. Treatise
of the Court of Star-Chamber, a copy whereof
has fallen into my hands by the favour of a
friend. And since I have named this work, I
shall, with his leave, take a paragraph out of
it, which, I am persuaded, will not be deemed
unsuitable to the present debate, after hinting
that the book seems to be wrote in the time of
James 1, when the doctrine now revived, and
so tenaciously advanced by Mr. Hamilton, is
said to have been long before exploded as a
gross error. "There are," says sir Thomas,
"two gross errors crept into the world concerning libels; the one, that it is no libel if
the party put his hand unto it, and the other,
that it is not a libel if it be true; both which
have been long since exploded out of this
court. For the first, the cause why the law
punisheth libels is, for that they tend to raise
the breach of the peace, which may as well be
done, and more easily, when the hand is subscribed, than when it is not. And for the
other, it hath been ever agreed, that it is not
the matter but the manner which is punishable.
For libelling against a common strumpet is as
great an offence as against an honest woman,
and perhaps more dangerous to the breach of
the peace; for, as the woman said, she should
never grieve to be told of her red nose, if she
had not one indeed. Neither is it a ground
to examine the truth or falshood of a libel, because it is sub judice, whether it be a libel or
not; for that takes away subjectum questionis,
and determines it to be no libel, by admitting
the defendant to prove the truth; and the defendant in that case ought to plead a justification and demur in law. But if he plead Not
Guilty, the question is gone, whether it be a
libel or not." Thus, according to this author's
opinion, who, if I mistake not, was one of the
justices of the court of King's-bench in his
time, Mr. Hamilton, could he really have persuaded himself that the matters charged in the
information were not libellous, as he insists
they are not, would have discovered more accuracy in his profession, as well as candour in
his practice, by advising his client to demur to
it, whereby he would have admitted no more
than what was avowed at the trial on the general issue. Then, indeed, it would have fairly
come before the Court to be considered whether the papers were libellous or not, and he,
as counsel for the defendant, might regularly
have been heard to it.
He would then have been at liberty to exert
his uncommon talents, manifest his extraordinary reading, his superior genius and great
skill in language, and in explaining the true
import of words, without so directly flying in
the face of every authority, and opposing all
the cases that ever were adjudged concerning
libels, before he was born and since. But
alas! that would not have answered the intention of our eloquent barrister. He would not
then have had it in his power to use his arts,
and play his game with a dozen honest men,
of as good natural understandings, perhaps,
though not of equal experience and cunning
with himself. If he had gone that way to
work, he would have had no chance for the
prize. Vain had been his expedition, and lost,
entirely lost, all his labour. In a word, if the
learning and integrity of the bar only were required, he might as well have staid at home,
where, if I am rightly informed, there are instances in abundance of the blessed effects of
Mr. Hamilton's well-known principles.
This sagacious gentleman begs leave to observe, that informations for libels is a child,
if not born, yet nursed up and brought to full
maturity in the Court of Star-Chamber: but
what is particularly to be inferred from this
shrewd observation, he does not at present tell
us. If the Star-Chamber was the Court where
crimes of this nature were generally punished,
according to its ordinary and proper jurisdiction, as it certainly was, how should it be
otherwise than that informations for libels
must be met with there? And considering the
antiquity of that court, it is more than probable the crime was first prosecuted and
punished in it. But what then? Is the legitimacy of the child (if I may be allowed to
carry on the metaphor) therefore to be called
in question; or its education the less honourable? I might put our witty barrister in
mind, that what I have mentioned is the very
reason why the spurious brat he is so fond of,
which was never brought to full maturity, nor
ever will, first appeared in the Star-Chamber,
though it has not been heard of since in any
other court, till very lately, at New-York; I
mean that of making falshood to be essential to
a libel, and claiming a right to give evidence
of the truth of it by way of justification.
He must, however, intend by the foregoing
passage, to impeach the legality of informations
qua such (which by some words that drop
from him many pages after, would seem to be
what he aims at), or as they relate only to
libels; and in either case he will again betray
the scantiness of his reading and knowledge in
the law. As to informations in general, it has
been incontestibly proved, that this method of
proceeding is no way contrariant to any fundamental rule of law, but agreeable to it. "That
it was the constant usage, and had the approbation of the judges and lawyers of all ages,
and in all reigns," Show. Rep. 106, to 125.
And in the case of the information against
seventy poor persons for a riot in pulling down
fences, &c. 2 W. and M. (which probably may
be the same) it was said by lord chief justice
Holt, that "the lord chief justice Hales complained of the abuse of informations, but not
that they were unlawful; that he should
not come now and impeach the judgment of
all his predecessors; that the Star Chamber
was not set up by the statute of Hen. 7, but
was as common-law, and informations were
accordingly brought in that court and others.
And the whole court were of opinion, that informations lay at common-law." 5 Mod. 463,
4. Now this I take to be as good an authority
as the extrajudicial opinions of those anonymous great men who, Mr. Hamilton says,
have boldly asserted that the mode of prosecution by information is a national grievance, and
greatly inconsistent with the freedom which
the subjects of England enjoy in most other
cases; nor can one forbear observing, en
passant, that he seems much more disposed,
where there is no danger at least, to follow the
example of bold, than of wise and judicious
men.
This then being a legal course of proceeding
in criminal cases, and for all public offences, it
must undeniably be as proper in the case of
libels as in any other. And sir B. Shower in
reckoning up the several crimes that were cognizable in the court of Star-Chamber, includes
libels among the rest, for which he says,
There were always informations in the StarChamber and King's-bench. Show. 119. I
am the more free in borrowing what I do from
that eminent practiser, on the subject of informations, because he had studied it well, and
taken more than usual pains therein; and as
the judgment afterwards given by the court
of King's-bench was pursuant thereto, so it
seems to have put a period in Westminster-hall
to all cavils against thai mode of prosecution.
If the barrister means notwithstanding to
suggest moreover, that informations for libels
are but of modern date, or little longer standing than about the time of the expiration of
that court, where he supposes they had their
origin, let him be further refuted by the abovementioned sir Thomas Mallet, who wrote professedly on the court of Star-Chamber, and
may be supposed to be pretty well acquainted
with his subject: he tells us, [Treatise of the
court of Star-Chamber, ubi supra] that "in
all ages libels have been severely punished in
this court, but most specially when they began
to grow frequent about 42 and 43 Eliz. when
sir Edward Coke was her attorney general."
And, treating of the antiquity of that court,
he makes it very probable [Id. 1 Part, 4th
Consid.] that it was the most ancient of any
court of justice, and the mother-court of the
kingdom; wherein he does not differ from sir
Edward himself, in his 4th Inst. (54, already
quoted. Now it was while this consummate
lawyer, it seems, was attorney-general to the
renowned queen Elizabeth, that informations
for libels began to be most frequent, or, in Mr.
Hamilton's elegant stile, when the child was
brought to full maturity : and it is readily submitted to all who are versed in our history and
constitution, whether that period will be any
disparagement to the offspring.
But if informations for libels in particular,
were one of the grievances of that court, nay
the chief, as the barrister would labour to make
his hearers believe, how came they to be practised after the abolishment of it? Or what will
he say to the case of the king against Darby,
which was an information exhibited against
the defendant, being an attorney of the Common-Pleas, for defamatory words only of sir
John Kay, a justice of peace, concerning the
exercise of his office? The words were, as they
are set forth in Comb. 65. "Sir John Kay is a
buffle-headed fellow, (a pretty thing to be
proved in court!) understands not law, and is
not fit to discourse it with me; he hath not
done justice to my client." There it was argued
for the defendant on a demurrer, (and I chuse
to recite it because of the concessions of his
counsel, against our northern advocate,) "That
an information would not lie for scandalous
words spoken only of a particular person, because he might have an action on the case to
recompence him in damages. — It is true, such
a proceeding might be warranted for libels, or
for dispersing defamatory letters, because by
such means the public peace might be disturbed, and discords fomented amongst neighbours, which might at last be a public injury :
but there is no such thing alleged in this case,
only words in common discourse, for which an
action on the case might lie, but no information. On the other side it was insisted, that
this information was founded on sufficient
matter, because the prosecution is not only
as it respects the person of sir John Kay, but
it relates to him as he is a public magistrate,
and who is subordinate to the government, and
therefore such defamatory words are a reproach
to the supreme governor, by whom magistrates are intrusted, and from whom they derive their authority; and it will not be denied,
but that words reflecting on the public government are punishable at the suit of the
king by an information. And for this reason
the Court held that an information would lie,
and thereupon gave judgment against the defendant, and fined him an hundred marks."
Carth. 14, 15.
Mr. Hamilton, who would seem to be more
knowing than his neighbours in many things,
affects to be move ignorant than every body,
of what constitutes a libel; and therefore, although he pretends freely to acknowledge
there are such things as libels, yet he insists at
the same time, that what his client is charged
with, is not one; and if it be not, I will as
freely acknowledge there can be no such thing.
He desires the Attorney General to favour
them with some standard definition of a libel,
by which it may be certainly known, whether
a writing be a libel, yea or not. And what is
this for? Why, truly, to shorten the dispute.
But what dispute does he speak of? The only
point that could admit of dispute had been
given up before by his confessing the matters
in issue, and the prosecutor's witnesses being
thereupon discharged. As to what he requires,
either there was such a definition to be met with
in the books, or there was not; if there was, he
ought to have known it; if there was not, why
should he desire Mr. Attorney to favour him
with one? Yet after he had been indulged beyond measure, and a definition was produced
from a good author, who besides refers to several others that are unquestionable, all which
conclude against his client; is this loquacious
advocate contented? No; there are two words
to that bargain, as he had said before. He
makes it a foundation for further disputes, and
according to his wonted ingenuity and candour
throughout his reverie, calls the concurrent
sense of our books Mr. Attorney's rule, and
Mr. Attorney's doctrine.
"But what certain standard rule," quoth
he, "have the books laid down, by which
we can certainly know whether the words
are malicious? Whether they are defamatory? Whether they tend to a breach of the
peace? and are a sufficient ground to provoke a man, his family or friends to acts
of revenge?" &c. Now, these queries methinks do not so well become the mouth of an
advocate, as they might that of his client,
when abandoned to his own defence in a desperate cause.
But I answer, no rules certainly can be of use to those who are determined to act without any, or in opposition to
all rules, in which class our northern barrister
must be placed, if we are to frame a judgment
of him from the share he bore in this trial.
The rule laid down in our books concerning
libels (I speak of libels in the strict sense, according to the definition of Mr. Serjeant Hawkins, referred to in the trial, and which alone
concerns the present case) is founded on the
reason of the thing; and is the same which
is to be observed in other matters that depend
upon the construction of words and writings,
which are signs only, or images of ideas intended to be conveyed to the understanding of
the reader. There may, indeed, be divers rules
applied, according to the circumstances of the
case; and this, among the rest, that where
words are capable of two senses, the one
faulty, the other innocent, the latter is to be
taken, provided such a construction may be
made without violence to their natural import
and meaning. From whence it will follow,
that the same cases may happen that are
doubtful, and do not come under any standard
rule, on all which occasions honest and upright
judges will incline to the favourable side: There
may be others again so clear and evident, that
a man must resign his reason, or resolve to sacrifice his conscience, that does not discern, or
will not allow them to be libellous. But in
none of these cases can it come properly to be
a question before the jury) whether a libel or
not, on the plea of Not Guilty, though it might
afterwards be so, before the Court, in arrest of
judgment. By what has been said, there appears to be latitude enough for a skilful pen
(who notwithstanding must do it at his peril)
to lash public and private vices, to caution the
people against measures that may be hurtful
to them, or to remonstrate against the evil
practices even of those in power, without being always exposed to the penalties of the law.
Such a liberty of writing and printing, under
due restrictions, I own Englishmen ought not,
and I hope never will, be deprived of; and
where this is dexterously done, it would be
ridiculous for private persons to put the cap on
their own heads, and no less impolitic for those
in high stations to apply every thing to their
administration. When such a work is undertaken by able hands, and with a generous view
of serving the public, it is always laudable,
and often very useful; but to succeed herein,
requires a capacity and talents not to be discovered in Mr, Zenger's news-papers, or his
counsel's speech.
I perceive my letter is unawares run to a
great length, by the quotations that are interspersed, and which yet I am sensible is the
least exceptionable part of it. I shall therefore
take notice but of one thing more in this matchless harangue, which indeed ought not to be
forgot, because it is made the basis and foundation of the whole; and that is, concerning
the "right of freemen to complain when they
are hurt." This our lawyer often asserts in
general terms, with some variation only of the
expression. As to which, I would ask, whether
by it he means a right to remonstrate and complain in a legal way, or a right in all cases to
appeal to the people by seditious and scandalous
libels? If the former, nobody ever denied it,
and what he said was not ad idem; so that he
was fighting with the air, and quarrelling without an adversary : if the latter, he dishonoured
his gown, by advancing what is notoriously
repugnant to all laws, human and divine. It
was ruled in the Court of B. R. Trin. 16 Car.
That although a bill be preferred in the StarChamber against a judge for corruption, or
any other for any great misdemeanor, yet if
the plaintiff will tell the effect of his bill in a
tavern, or any open place, and by that means
scandalize the defendant, the same is punishable in another court. March, Rep. 76, 77.
So in the Case of Hole and Mellers, 28 Eliz,
in C. B. it was said by the Court, that although
the queen is the head and fountain of justice,
and therefore it is lawful for all her subjects to
resort unto her ' ad faciendam Querimoniam;'
yet if a subject, after the bill once exhibited,
will divulge the matter therein comprehended,
to the disgrace and discredit of the person intended, it is good cause of action, 3 Leon. 138.
And to the same purpose, in a much later case,
viz. that of Lake and King, reported in many
of our books, to which Mr. Serjeant Hawkins
refers, it seems agreed, as he observes, that
whoever delivers a paper full of reflections on
any person, in nature of a petition to a committee of parliament, to any other person except the members of parliament, may be punished as the publisher of a libel, in respect of
such a dispersing thereof among those who
have nothing to do with it. 1 Hawk. c. 74, § 12.
But our forward barrister, aged and infirm
as he represents himself (which compared with
his conduct, is the keenest satire that could be
Suggested of him), ought to be further instructed, that even where complaints are to the
king himself, they must be made in a proper
and regular manner; a decency is to be observed, and a regard always had to the characters and stations of the persons against whom
such complaints are made. In 13 R. 2, Rot.
Parliament, No 45, the Commons desired they
might not he troubled for any matter that
should be contained in petitions to the king;
and the king answered, Let every man complain, so it be with law and reason. It is lawful therefore, no doubt, as it has been resolved,
for any subject to petition to the king for redress, in an humble and modest manner, where
he finds himself aggrieved by a sentence or
judgment; for access to the sovereign must
not be shut up, in case of the subjects distresses.
But, on the other side, it is not permitted, under colour of a petition and refuge to the king,
to rail upon the judge or his sentence, and to
make himself judge in his own cause, by prejudging it before a re-hearing. Hob 220. Yet
sir Rowland Flaxing was committed, and deeply fined, for reporting to the king, that he could
have no indifferency before the Lords of the
Council, 7 Feb. 18 Hen. 8. So likewise, in
the time of Hen. 7, sir Richard Terrets was
committed, fined, sent to the pillory, and adjudged to lose both his ears, for his slanderous
complaint exhibited to the king, in a written
book, against the chief-justice Fitz James.
Which Cases are cited by chief-justice Montague, in the Case of Wraynham (who was
severely punished for an offence of the same
nature), as may be seen in this Collection, vol.
2, p. 1059. To these may be added, Jeffe's
Case in the King's-bench, Mich. 5 Car. Jeffe
was indicted for exhibiting an infamous libel,
directed to the king, against sir Edward Coke,
late chief-justice of the King's-bench, and
against the said court, for a judgment given in
the said court, in the Case of Magdalen-College,
affirming the said judgment to be treason, and
calling him therein traitor, perjured judge, and
scandalizing all the professors of the law. He
fixed this libel upon the great gate at the entrance of Westminster hall, and in divers other
places; and being hereupon arraigned, prayed
that counsel might be assigned him, which was
granted; and he had them; but would not he
ruled to plead as they advised, but put in a
scandalous plea; and insisting upon it, affirmed
he would not plead otherwise. Whereupon it
was adjudged he should be committed to the
marshal, and that he should stand upon the
pillory at Westminster and Cheapside, with a
paper mentioning the offence, and with such a
paper be brought to all the courts of Westminster, and be continued in prison until he
made his submission in every court; and that
he should be bound with sureties to be of good
behaviour during his life, and pay 1,000l. fine
to the king. Cro. Car. 175, 6.
What now shall we say, or what must be
thought of one, who, while ho pretends to great
reading, and a thorough knowledge of these
things, could yet, in the face of a court, and in
defiance of its authority, and indeed of all authority, presume to justify the publication of
the most audacious libels, against that very government under which he was breathing the
sedition! A person, who, as a counsellor at law,
boasting at the same time of having seen the
practice in very great courts, would dare to
call such publication, addressed to the people,
the just complaints of a number of men who
suffer under a bad administration! Some of the
words charged in the information, and which
Mr. Hamilton offered to prove, are, That the
law was at an end. I can't tell what proof he
had to give of this fact; hut surely if his doctrine were to prevail, it must soon be the case;
and, for my own part, I will confess, I have not
hitherto heard of any thing, in that province,
which looked so much like it, as that such a
behaviour should not only go unpunished, but
be attended with public munificence and applause. The truth is, this gentleman, though
stiled a barrister at law in the order of the common-council of the city of New York, and
which title, therefore, I have likewise given
him, seems notwithstanding, instead of maintaining that character, in the trial before us, to
be rather possessed with a fit of knight errantry, and to have sallied out from Philadelphia
to the other province, with a full resolution to
to encounter every thing that was law, and to
level all to the ground that stood in his way.
. Let the reader then be judge, upon the whole,
whether he comes within the description of that
mischievous animal I mentioned towards the
beginning of these sheets.
After all, I flatter myself if will not be imagined, that I was stimulated to these hasty animadversions by a principle of envy to Mr. Hamilton, or any disrespect to those who were
pleased to patronize his performance, since
they are utter strangers to sue, and probably
will ever remain so. On the contrary, they
may believe me, when I declare, that if the
one had really merited what the others were of
opinion he did, I should with much more pleasure have signified my approbation of the conduct of both, than I now take in shewing my
dislike. It is on this score, Sir, that I cannot
conclude, without publicly returning my share
of the thanks that are due from the fraternity
to your friend, the polite author of the former
letter, who has done justice to the bar by his
Remarks, which, in my humble apprehension,
are worthy of any gentleman at it, either here
or elsewhere. I am, &c. INDUS-BRITANNICUS.
With respect to Mr. Hamilton's mention (p.
719), that "as great men as any in Britain have
boldly asserted that the mode of prosecuting
by information (when a grand jury will not
find Billa vera), is a national grievance, and
greatly inconsistent with that freedom which
the subjects of England enjoy in most other
cases;" See in a Note to sir William Williams's
Case, vol. 13, p. 1369, an account of what
passed in parliament at the time of the Revolution respecting informations. See, also, Parl.
Debates, vol. 19, 129, 548; vol. 20, p. 596;
vol. 23, p. 1069.
The proceedings concerning Informations
ex officio, which were had in parliament at the
time of the Revolution, are noticed in the Letter concerning Libels, Warrants, &c. but I did
not recollect this when I prepared sir W. Williams's Case.